Valdosta Hotel Properties, LLC v. White
| Decision Date | 14 March 2006 |
| Docket Number | No. A05A1661.,A05A1661. |
| Parties | VALDOSTA HOTEL PROPERTIES, LLC v. WHITE. |
| Court | Georgia Court of Appeals |
Misner, Scott & Martin, Steven J. Misner, Atlanta, for appellant.
Mann & Mann, Tommy C. Mann, Macon, Gambrell & Stolz, Charles M. Cork III, Atlanta, for appellee.
Valdosta Hotel Properties, LLC contends that the trial court erred in ruling that a lawsuit filed against it in reliance upon the renewal statute was not time-barred. We agree and therefore reverse the trial court's denial of summary judgment to Valdosta Hotel Properties.
Alleging that she suffered personal injuries in a slip and fall at a Hampton Inn located at 1705 Gornto Road, Valdosta, on June 21, 2000, Robbie White filed a complaint on June 20, 2002, just before expiration of the two-year statute of limitation for personal injuries.1 White named as the sole defendant "Hilton Hotels Corporation d/b/a Hampton Inn Valdosta, GA," alleging that it operated the hotel at that address.
The record contains four sheriff's returns of service. One shows that on June 26, 2002, defendant "Hilton Hotels Corporation d/b/a Hampton Inn Valdosta, GA" was served by leaving a copy of the complaint and summons with "Valerie Holmes (reg agent)." Another one shows that on that same date "Hampton Inns, Inc." was served by leaving a copy of the complaint and summons with "Valerie Holmes (reg agent)." A third return of service states that on July 6, 2002, "Sue Hicks Manager, Hampton Inn" was served by leaving a copy of the complaint and summons with "Nicky Robinson." And a fourth states that on July 22, 2002, "Valdosta Hotel Properties, LLC c/o its registered agent for service, David G. Mercer" was served by leaving a copy of the complaint and summons with "Debra Hood (Operations)."
Hilton Hotels Corporation answered and moved for summary judgment, challenging the sufficiency of service upon it and denying that it had any control over the operations of the hotel. It presented evidence of an agreement between one of its subsidiaries and Valdosta Hotel Properties, licensing the latter to operate a Hampton Inn hotel at 1705 Gornto Road, Valdosta. It also presented evidence that Hilton Hotels Corporation is a separate and distinct company from both Hampton Inns, Inc. and Valdosta Hotel Properties; that neither Hilton Hotels Corporation nor its subsidiary has ever had any responsibility for the daily operations, activities, or business affairs of Valdosta Hotel Properties; and that neither Hilton Hotels Corporation nor its subsidiary has any ownership interest in Valdosta Hotel Properties.
While that motion for summary judgment was pending and without leave of court, on December 9, 2002, White filed an "Amendment to Complaint to Correct Misnomer," stating that
Hilton Hotels Corporation d/b/a Hampton Inn Valdosta, Georgia, has been incorrectly designated in this action as the Defendant when the correct name of the Defendant is Valdosta Hotel Properties, LLC., d/b/a Hampton Inn Valdosta, Georgia.... Valdosta Hotel Properties, LLC., d/b/a Hampton Inn Valdosta, Georgia, by virtue of this amendment, is hereby substituted for Hilton Hotels Properties [sic] d/b/a Hampton Inn Valdosta, Georgia....
That same day, White filed a voluntary dismissal without prejudice of Hilton Hotels Corporation in that suit.
Specially appearing, Valdosta Hotel Properties moved to dismiss White's case against it or, alternatively, to dismiss the case in its entirety. It argued that White's amendment was an attempt to drop and add a party, that such a change required leave of court pursuant to OCGA § 9-11-21, and that because White did not obtain leave of court, the amendment was ineffective to add it as a party defendant. Moreover, Valdosta Hotel Properties argued, when White filed a voluntary dismissal of Hilton Hotels Corporation, her case was left with no defendant at all.
While that motion was pending, White filed on March 10, 2003 a voluntary dismissal of that case. On August 8, 2003, in reliance upon the renewal statute, she filed another action naming as defendants "Valdosta Hotel Properties, LLC. d/b/a Hampton Inn Valdosta" and its alleged owner and operator, David Mercer. The sheriff's returns of service show that the manager of the hotel was served that same month and that Mercer was served the following month.
Valdosta Hotel Properties and Mercer moved for summary judgment, asserting that White's personal injury action was barred as untimely.2 The trial court granted the motion with regard to Mercer, but denied the motion with regard to Valdosta Hotel Properties. We granted Valdosta Hotel Properties' application for interlocutory review of the trial court's denial of its motion for summary judgment.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.3 We review a trial court's denial of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.4
White filed that suit as a renewal action in reliance upon OCGA § 9-2-61, which pertinently provides:
When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.5
However, "OCGA § 9-2-61 may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued."6
Valdosta Hotel Properties maintains that White failed to make it a party to her original action filed in 2002. It cites OCGA § 9-11-21, which pertinently provides, "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Valdosta Hotel Properties argues that because White filed the amendment in the 2002 case without leave of court, the amendment was ineffective to add it to the 2002 case as a party defendant.
White counters that compliance with OCGA § 9-11-21 was not required, advancing several arguments.
First, White claims she was entitled to file the amendment without leave of court pursuant to OCGA § 9-11-15(a), which permits a party to "amend his [or her] pleading as a matter of course and without leave of court at any time before the entry of a pretrial order." It is uncontested that no pretrial order was entered in the 2002 action.
This argument was made and rejected in Dollar Concrete Constr. Co. v. Watson,7 where this court reiterated,
In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15, leave of court must first be sought and obtained pursuant to OCGA § 9-11-21. The record in this case makes it clear that leave of court to add a party to the existing case by amendment was never sought nor obtained. OCGA § 9-11-21 parallels Rule 21 of the Federal Rules of Civil Procedure, and the Federal courts have long construed it to require the obtaining of leave of court when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. The adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court. Obtaining leave of court is a requisite.8
Thus,
[White] contends correctly that OCGA § 9-11-15(a) allows amendment as a matter of right before entry of a pre-trial order. Where, however, a party seeks to add a new party by amendment, as does [White] here, 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.9
Because no such order was entered in White's original case, the amendment was ineffective to add Valdosta Hotel Properties as a defendant.10
Second, White argues that Dollar Concrete Constr. Co. cannot be followed because it violates binding precedent of the Supreme Court of Georgia set forth in Franklyn Gesner Fine Paintings v. Ketcham.11 As did the plaintiffs in Dollar Concrete Constr. Co., White characterizes the amendment as only correcting a misnomer of a party name, which does not require leave of court.12 Dollar Concrete Constr. Co. rejected this characterization of the amendment in that case, noting that the amendment did not "serve[] only to correct a misnomer in the style of the case ... because both [the party named in the original complaint] and [the intended defendant] were in existence on the date the action was filed."13 White claims this language is contrary to language in Franklyn Gesner Fine Paintings overruling
cases which stand for the proposition that it is prohibited to amend to change from the party first named to the party intended to be named where the party first named does in fact exist (as here), in which case the amendment was held to amount to the addition of a new party or a change of parties.14
But Dollar Concrete Constr. Co. did not hold that an amendment changing party defendants was prohibited because both companies existed. It held that an amendment attempting to substitute one company for another without leave of court is ineffective. The language isolated by White merely expounded on this court's determination that the amendment was not the type serving only to correct the misidentification of one particular party.15 Moreover, in Franklyn Gesner Fine Paintings, the party...
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