(Ga. L. 1966, p. 609, § 15; Ga. L. 1968, p. 1104, § 4; Ga. L. 1972, p. 689, § 6.)
Cross references.- Effect of negligence or delay by party applying for leave to amend pleadings, § 9-10-134.
Provision that amendment of pleadings pursuant to court order does not constitute waiver of objection to order, § 9-10-135.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 15, see 28 U.S.C.
Law reviews.- For article discussing flexibility necessary for operation of amendment statutes, see 12 Ga. B.J. 127 (1949). For article surveying the law in Georgia on admissions, see 8 Mercer L. Rev. 252 (1957). For article, "Synopses of 1968 Amendments of the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article discussing the historical background of the doctrine of tender and the application in Georgia of tender requirements, and proposing reforms, see 21 Mercer L. Rev. 413 (1969). For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 3 Mercer L. Rev. 109 (1981). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For annual survey article on legal ethics, see 56 Mercer L. Rev. 315 (2004). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For article, "Fisher v. Gala: O.C.G.A. § 9-11-9.1(e) Keeping Malpractice Claims Afloat," see 66 Mercer L. Rev. 817 (2015). For annual survey on torts law, see 69 Mercer L. Rev. 299 (2017). For comment on Leniston v. Bonfiglio, 138 Ga. App. 151, 226 S.E.2d 1 (1976), see 28 Mercer L. Rev. 559 (1977).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 5681, former Code 1933, § 81-1301, and former Code 1933, Ch. 13, T. 81, are included in the annotations for this Code section.
Pleadings are a means, not an end.
- This section is one of the most important that deal with pleadings; it reemphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but only a means to the proper presentation of a case, and that at all times pleadings are to assist, not deter, disposition of litigation on the merits. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).
Construction with § 50-21-35. - Absent evidence that the Department of Transportation demonstrated actual prejudice from a surviving spouse's failure to comply with O.C.G.A. § 50-21-35 by failing to timely amend a damages complaint with a certificate showing service upon the attorney general, a dismissal order was vacated, and the case was remanded. Ingram v. DOT, 286 Ga. App. 220, 648 S.E.2d 729 (2007).
Not applicable to claims under Georgia's Workers' Compensation Act.
- O.C.G.A. § 9-11-15(c) has not been incorporated into the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq. McLendon v. Advertising That Works, 292 Ga. App. 677, 665 S.E.2d 370 (2008).
Amendment of complaint before service.
- In a personal injury action, the plaintiff could amend the complaint before the defendant was served, could serve the "recast complaint" without serving a copy of the original complaint, and, therefore, timely served the defendant. Kennedy v. Porter, 213 Ga. App. 398, 444 S.E.2d 818 (1994).
Complaint signed by unlicensed attorney was not void but merely voidable, and the defect was properly cured by amendment. McCormick v. Acree, 232 Ga. App. 834, 503 S.E.2d 88 (1998).
People's right to litigate with governmental bodies should not be decided on technicalities any more than one citizen's right to litigate with another citizen. City of Atlanta v. International Soc'y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977).
Amendment to objection to probate.
- It was error to dismiss an amended objection to the probate of a will on the ground that the original objection was legally insufficient, as an amendment to a caveat was permitted even when it was the amendment that sustained the validity of the caveat; the original objection put the proponent on notice of the objection, and its amendment the next day to include the grounds of undue influence and mental incapacity was proper under O.C.G.A. §§ 9-11-15 and15-9-89. Deering v. Keever, 282 Ga. 161, 646 S.E.2d 262 (2007).
Mechanic's liens.
- This section, providing for amendment of "pleadings," does not apply to a mechanic's lien because such lien is nothing more than a matter of proof. Shirah Contracting Co. v. Waite, 143 Ga. App. 355, 238 S.E.2d 728 (1977).
Recovery of future rents.
- In the absence of an amendment to the complaint, supplemental pleadings, or trial of the claims for accrued rents by the express or implied consent of the parties, the trial court was not authorized to enter judgment for the landlord for rents that became due after commencement of the action. Dwyer v. Anand, 210 Ga. App. 419, 436 S.E.2d 532 (1993).
Implied consent to amendment of defendant's counterclaim in landlord/tenant situation.
- Although a trial court erred in awarding a tenant attorney fees under O.C.G.A. § 13-6-11 because the tenant's counterclaim was not independent or viable, the error was harmless since attorney fees were authorized under an amended lease provision allowing attorney fees to the prevailing party. The landlord was not misled or denied the opportunity to defend or offer evidence on the issue because at the first trial, the tenant asserted that the tenant was seeking attorney fees as the prevailing party, and at the second trial, the tenant stated in the tenant's opening statement that in addition to seeking attorney fees under § 13-6-11, it was seeking and introducing evidence of attorney fees as recoverable under the lease provision, and having failed to make a contemporaneous objection when the arguments were raised and the evidence introduced, the landlord implicitly consented to the amendment of the pleadings to include the claim and waived any objections thereto. Sugarloaf Mills Ltd. P'ship v. Record Town, Inc., 306 Ga. App. 263, 701 S.E.2d 881 (2010).
Jury trial.
- Demand for jury trial must be made at time of original answer, and the defendant cannot later make such request. Williams v. Leonard Heating & Air Conditioning Co., 137 Ga. App. 16, 223 S.E.2d 2 (1975).
Waiver of right to jury trial is not within purview of this section. Marler v. Citizens & S. Bank, 139 Ga. App. 851, 229 S.E.2d 786 (1976), aff'd, 239 Ga. 342, 236 S.E.2d 590 (1977). But see Gregson & Assocs., Inc. v. Webb, 143 Ga. App. 276, 238 S.E.2d 274 (1977).
When a third-party defendant had not been served as a party to the main action, there could be no judgment entered in the main action by the trial court against the third-party defendant. Stone Mountain Aviation, Inc. v. Rollins Leasing Corp., 174 Ga. App. 35, 329 S.E.2d 247 (1985).
Evidence of additional damages in trial de novo.
- When the plaintiff appealed to the state court from a magistrate court's decision dismissing the plaintiff's claim and awarding damages to the defendant on its counterclaim, and plaintiff had notice of additional damages since the original counterclaim, the defendant could present evidence of additional damages of less than $5,000 relating to the defendant's counterclaim, without formal amendment of the defendant's pleadings. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 477 S.E.2d 141 (1996).
No waiver of defenses.
- Trial court erred by granting a parent's complaint for modification of child custody and support and changing custody, which was filed in that parent's county of residence, as that county was not the jurisdiction wherein the issue of custody and support was originally litigated and the opposing parent never waived the challenge to the jurisdiction of the trial court via a pro se letter, which merely acknowledged receipt of the complaint; as a result, the judgment granting the change of custody was reversed and the case was remanded to the trial court with directions for the trial court to transfer the case to the trial court of the proper county. Hatch v. Hatch, 287 Ga. App. 832, 652 S.E.2d 874 (2007).
Action for breach of fiduciary duty against a conservator was tried by implied consent although it was not pled.
- Although the record showed that a conservator did not bring a claim pursuant to O.C.G.A. § 29-5-93(a)(4) in writing, but sought only an accounting pursuant to O.C.G.A. § 29-5-81, the conservator did not object when the administrator raised the issue at the hearing. As a result, the issue of whether the conservator breached the conservator's fiduciary duty was litigated by the implied consent of the parties pursuant to O.C.G.A. § 9-11-15(b). In re Hudson, 300 Ga. App. 340, 685 S.E.2d 323 (2009).
Grandparents' visitation deemed tried by consent when parent did not object.
- Because a parent's only objection to the grandparents' visitation raised at the hearing was the parent's concern for advance notice by the grandparents before scheduling a visit, the parent failed to preserve any objection that the grandparents had failed to intervene in the action as contemplated by O.C.G.A. § 19-7-3(c), pursuant to O.C.G.A. § 9-11-15(b). Grove v. Grove, 296 Ga. 435, 768 S.E.2d 453 (2015).
Cited in YMCA of Metro. Atlanta, Inc. v. Bailey, 107 Ga. App. 417, 130 S.E.2d 242 (1963); Ward v. National Dairy Prods. Corp., 224 Ga. 241, 161 S.E.2d 305 (1968); Hirsch's v. Adams, 117 Ga. App. 847, 162 S.E.2d 243 (1968); City of Atlanta v. Fuller, 118 Ga. App. 563, 164 S.E.2d 364 (1968); Johnson v. Myers, 118 Ga. App. 773, 165 S.E.2d 739 (1968); Whaley v. Disbrow, 225 Ga. 145, 166 S.E.2d 343 (1969); Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Smith v. Smith, 119 Ga. App. 619, 168 S.E.2d 609 (1969); Kelley v. Carson, 120 Ga. App. 450, 171 S.E.2d 150 (1969); Black v. Aultman, 120 Ga. App. 826, 172 S.E.2d 336 (1969); Bearden v. GMAC, 122 Ga. App. 180, 176 S.E.2d 652 (1970); Neal v. Smith, 226 Ga. 96, 172 S.E.2d 684 (1970); Hogan v. Maxey, 121 Ga. App. 490, 174 S.E.2d 208 (1970); Mull v. Aetna Cas. & Sur. Co., 226 Ga. 462, 175 S.E.2d 552 (1970); Dowdney v. Shadix, 122 Ga. App. 119, 176 S.E.2d 512 (1970); Montgomery v. Richards Bldg. Materials, Inc., 122 Ga. App. 472, 177 S.E.2d 507 (1970); Robinson v. Bomar, 122 Ga. App. 564, 177 S.E.2d 815 (1970); Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970); Perkins v. Perkins, 227 Ga. 177, 179 S.E.2d 518 (1971); Harrison v. Harrison, 228 Ga. 126, 184 S.E.2d 147 (1971); Thornton v. North Am. Acceptance Corp., 228 Ga. 176, 184 S.E.2d 589 (1971); Rogers v. Eavenson, 124 Ga. App. 230, 183 S.E.2d 498 (1971); Rushing v. Ellis, 124 Ga. App. 621, 184 S.E.2d 667 (1971); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53, 189 S.E.2d 702 (1972); Seaboard Coast Line R.R. v. Metzger, 126 Ga. App. 178, 190 S.E.2d 156 (1972); First Nat'l Bank v. Langford, 126 Ga. App. 325, 190 S.E.2d 803 (1972); Shure v. Willner & Millkey, 126 Ga. App. 368, 190 S.E.2d 620 (1972); McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972); O'Quinn v. James, 127 Ga. App. 94, 192 S.E.2d 507 (1972); Whitley v. Whitley Constr. Co., 127 Ga. App. 68, 192 S.E.2d 563 (1972); Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972); Darnell v. Betty's Creek Baptist Church, 230 Ga. 461, 197 S.E.2d 714 (1973); Anken Constr. Co. v. Artistic Ornamental Iron Co., 129 Ga. App. 32, 198 S.E.2d 389 (1973); Murray Chevrolet Co. v. Godwin, 129 Ga. App. 153, 199 S.E.2d 117 (1973); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251, 199 S.E.2d 319 (1973); Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 201 S.E.2d 654 (1973); Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973); Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff'd, 483 F.2d 1395 (5th Cir. 1973); Baitcher v. Louis R. Clerico Assocs., 132 Ga. App. 219, 207 S.E.2d 698 (1974); Kingston Dev. Co. v. Kenerly, 132 Ga. App. 346, 208 S.E.2d 118 (1974); Rodriguez v. Newby, 131 Ga. App. 651, 206 S.E.2d 585 (1974); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49, 207 S.E.2d 567 (1974); Brer Rabbit Mobile Home Sales, Inc. v. Perry, 132 Ga. App. 128, 207 S.E.2d 578 (1974); Board of Comm'rs v. Allgood, 234 Ga. 9, 214 S.E.2d 522 (1975); Ayala v. Sherrer, 234 Ga. 112, 214 S.E.2d 548 (1975); Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975); McLanahan v. Keith, 135 Ga. App. 117, 217 S.E.2d 420 (1975); Thomas v. Davis, 235 Ga. 32, 218 S.E.2d 787 (1975); Monumental Properties, Inc. v. Johnson, 136 Ga. App. 39, 220 S.E.2d 55 (1975); Bell v. Loosier of Albany, Inc., 137 Ga. App. 50, 222 S.E.2d 839 (1975); Cook v. Computer Listings, 137 Ga. App. 526, 224 S.E.2d 501 (1976); Smith v. Emory Univ., 137 Ga. App. 785, 225 S.E.2d 63 (1976); Phillips v. Williams, 137 Ga. App. 578, 224 S.E.2d 515 (1976); McKibben v. Thomas, 138 Ga. App. 544, 227 S.E.2d 87 (1976); Pendley v. Hunter, 138 Ga. App. 864, 227 S.E.2d 857 (1976); Greer v. State Farm Fire & Cas. Co., 139 Ga. App. 74, 227 S.E.2d 881 (1976); Smith v. Security Mtg. Investors, 139 Ga. App. 635, 229 S.E.2d 115 (1976); Filsoof v. West, 235 Ga. 818, 221 S.E.2d 811 (1976); Haire v. Cook, 237 Ga. 639, 229 S.E.2d 436 (1976); Belt v. Allstate Ins. Co., 140 Ga. App. 740, 231 S.E.2d 831 (1976); Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977); Security Ins. Co. v. Gill, 141 Ga. App. 324, 233 S.E.2d 278 (1977); Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Kimball Bridge Rd. v. Everest Realty Corp., 141 Ga. App. 835, 234 S.E.2d 673 (1977); Cleary v. Southern Motors of Savannah, Inc., 142 Ga. App. 163, 235 S.E.2d 623 (1977); Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 237 S.E.2d 685 (1977); Wagner v. Wagner, 238 Ga. 404, 233 S.E.2d 379 (1977); Buck v. Buck, 238 Ga. 540, 233 S.E.2d 792 (1977); Kloville, Inc. v. Kinsler, 239 Ga. 569, 238 S.E.2d 344 (1977); Summerlot v. Crain-Daly Volkswagen, Inc., 238 Ga. 546, 233 S.E.2d 749 (1977); Mundy v. Cincinnati Ins. Co., 141 Ga. App. 106, 232 S.E.2d 621 (1977); Perry v. Dudley, 141 Ga. App. 455, 233 S.E.2d 849 (1977); Mattair v. St. Joseph's Hosp., 141 Ga. App. 597, 234 S.E.2d 537 (1977); Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729 (1977); Downs v. Jones, 142 Ga. App. 316, 235 S.E.2d 760 (1977); Chastain v. Simmons, 142 Ga. App. 615, 236 S.E.2d 678 (1977); Brown v. Jackson, 142 Ga. App. 780, 237 S.E.2d 13 (1977); Strother Ford, Inc. v. Bullock, 142 Ga. App. 843, 237 S.E.2d 208 (1977); Gregson & Assocs., Inc. v. Webb, 143 Ga. App. 276, 238 S.E.2d 274 (1977); Holt v. Rickett, 143 Ga. App. 337, 238 S.E.2d 706 (1977); Mullinax v. Shaw, 143 Ga. App. 657, 239 S.E.2d 547 (1977); Richman Bros. Lumber & Supply Co. v. Martin, 144 Ga. App. 39, 240 S.E.2d 308 (1977); Genins v. Geiger, 144 Ga. App. 244, 240 S.E.2d 745 (1977); Space Leasing Assocs. v. Atlantic Bldg. Sys., 144 Ga. App. 320, 241 S.E.2d 438 (1977); Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978); Lanier Petro., Inc. v. Hyde, 144 Ga. App. 441, 241 S.E.2d 62 (1978); Weiss v. Gunter, 144 Ga. App. 513, 241 S.E.2d 623 (1978); Tuggle v. State, 145 Ga. App. 603, 244 S.E.2d 131 (1978); Dalton Am. Truck Stop, Inc. v. ADBE Distrib. Co., 146 Ga. App. 8, 245 S.E.2d 346 (1978); Grizzard v. Petkas, 146 Ga. App. 318, 246 S.E.2d 375 (1978); Dunn v. McIntyre, 146 Ga. App. 362, 246 S.E.2d 398 (1978); Clover Realty Co. v. J.L. Todd Auction Co., 146 Ga. App. 576, 246 S.E.2d 695 (1978); Diaz v. First Nat'l Bank, 144 Ga. App. 582, 241 S.E.2d 467 (1978); Rude v. Rude, 241 Ga. 454, 246 S.E.2d 311 (1978); Farmers Mut. Exch. of Baxley, Inc. v. Dixon, 146 Ga. App. 663, 247 S.E.2d 124 (1978); Madison, Ltd. v. Price, 146 Ga. App. 837, 247 S.E.2d 523 (1978); Star Jewelers, Inc. v. Durham, 147 Ga. App. 68, 248 S.E.2d 51 (1978); Nelson v. Fulton County Bank, 147 Ga. App. 98, 248 S.E.2d 173 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483; 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978); International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979); Jackson v. Jackson, 243 Ga. 338, 253 S.E.2d 758 (1979); Good Housekeeping Shops v. Hines, 150 Ga. App. 240, 257 S.E.2d 205 (1979); Peachtree-Piedmont Assocs. v. Tower Place Billjohn, Inc., 150 Ga. App. 292, 257 S.E.2d 362 (1979); Marshall v. Fulton Nat'l Bank, 152 Ga. App. 121, 262 S.E.2d 448 (1979); Ingram v. Warren, 244 Ga. 189, 259 S.E.2d 448 (1979); Motor Fin. Co. v. Harris, 150 Ga. App. 762, 258 S.E.2d 628 (1979); Harrison Co. v. Code Revision Comm'n, 244 Ga. 325, 260 S.E.2d 30 (1979); Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979); West v. National Bank, 155 Ga. App. 178, 270 S.E.2d 245 (1980); Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 267 S.E.2d 786 (1980); McCoy Enters. v. Vaughn, 154 Ga. App. 471, 268 S.E.2d 764 (1980); West v. National Bank, 155 Ga. App. 178, 270 S.E.2d 245 (1980); Four Oaks Properties, Inc. v. Carusi, 156 Ga. App. 422, 274 S.E.2d 783 (1980); Cotton v. Federal Land Bank, 246 Ga. 188, 269 S.E.2d 422 (1980); Randall & Blakely, Inc. v. Krantz, 155 Ga. App. 238, 270 S.E.2d 265 (1980); Four Oaks Properties, Inc. v. Carusi, 156 Ga. App. 422, 274 S.E.2d 783 (1980)
City of Douglas v. Johnson, 157 Ga. App. 618, 278 S.E.2d 160 (1981); Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981); H.R. Kaminsky & Sons v. Yarbrough, 158 Ga. App. 523, 281 S.E.2d 289 (1981); Bituminous Cas. Corp. v. United Servs. Auto. Ass'n, 158 Ga. App. 739, 282 S.E.2d 198 (1981); Grier v. Employees Fin. Servs., 158 Ga. App. 813, 282 S.E.2d 342 (1981); Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799, 282 S.E.2d 383 (1981); Caldwell v. Hunnicutt, 159 Ga. App. 102, 282 S.E.2d 665 (1981); Henry v. Hemingway, 159 Ga. App. 375, 283 S.E.2d 341 (1981); Auto Rental & Leasing, Inc. v. Blizzard, 159 Ga. App. 533, 284 S.E.2d 47 (1981); Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981); Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710 (1982); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982); Martin v. Newman, 162 Ga. App. 725, 293 S.E.2d 18 (1982); Atlanta Window Co. v. Haskell Assocs., 162 Ga. App. 789, 293 S.E.2d 51 (1982); Brown v. Banks, 162 Ga. App. 808, 293 S.E.2d 69 (1982); Benson v. Sullivan, 162 Ga. App. 829, 293 S.E.2d 380 (1982); Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 296 S.E.2d 788 (1982); Concert Promotions, Inc. v. Haas & Dodd, Inc., 169 Ga. App. 711, 314 S.E.2d 720 (1984); Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 314 S.E.2d 903 (1984); Blalock v. Central Bank, 170 Ga. App. 140, 316 S.E.2d 474 (1984); DeBerry v. Knowles, 172 Ga. App. 101, 321 S.E.2d 824 (1984); Brown v. Commercial Credit Equip. Corp., 172 Ga. App. 568, 323 S.E.2d 822 (1984); Clonts v. Scholle, 172 Ga. App. 721, 324 S.E.2d 496 (1984); McCall v. Wyman, 173 Ga. App. 131, 325 S.E.2d 629 (1984); Graham v. Newsome, 174 Ga. App. 351, 330 S.E.2d 98 (1985); Fussell Sheet Metal, Inc. v. Artistic Constr. & Landscaping, Inc., 174 Ga. App. 618, 330 S.E.2d 813 (1985); Bandy v. Hospital Auth., 174 Ga. App. 556, 332 S.E.2d 46 (1985); C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774, 334 S.E.2d 362 (1985); Edelschick v. Blanchard, 177 Ga. App. 410, 339 S.E.2d 628 (1985); Shedd v. Goldsmith Chevrolet, 178 Ga. App. 554, 343 S.E.2d 733 (1986); American Game & Music Serv., Inc. v. Knighton, 178 Ga. App. 745, 344 S.E.2d 717 (1986); Henderson v. Easters, 178 Ga. App. 867, 345 S.E.2d 42 (1986); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897, 345 S.E.2d 106 (1986); In re C.M., 179 Ga. App. 508, 347 S.E.2d 328 (1986); Jenkins v. State, 180 Ga. App. 583, 349 S.E.2d 774 (1986); Bank S. v. Harrell, 181 Ga. App. 64, 351 S.E.2d 263 (1986); Rothstein v. L.F. Still & Co., 181 Ga. App. 113, 351 S.E.2d 513 (1986); Abernethy v. Cates, 182 Ga. App. 456, 356 S.E.2d 62 (1987); Thornton v. Ellis, 184 Ga. App. 884, 363 S.E.2d 584 (1987); Rose v. Kosilla, 185 Ga. App. 217, 363 S.E.2d 623 (1987); Atlanta Fire Sys. v. Alexander Underwriters Gen. Agency, Inc., 185 Ga. App. 873, 366 S.E.2d 197 (1988); Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 371 S.E.2d 421 (1988); MacDonald v. Vasselin, 188 Ga. App. 467, 373 S.E.2d 221 (1988); Bohannon v. Futrell, 189 Ga. App. 340, 375 S.E.2d 637 (1988); Calhoun v. Somogyi, 190 Ga. App. 502, 379 S.E.2d 595 (1989); Barnes v. GMAC, 191 Ga. App. 201, 381 S.E.2d 146 (1989); W.M. Griffin Family Farms, Inc. v. Northrup King & Co., 191 Ga. App. 304, 381 S.E.2d 441 (1989); Stuckey Health Care, Inc. v. State, 193 Ga. App. 771, 389 S.E.2d 349 (1989); Banks County Sch. Dist. v. Blackwell, 194 Ga. App. 50, 389 S.E.2d 782 (1989); Price v. Age, Ltd., 194 Ga. App. 141, 390 S.E.2d 242 (1990); Utica Mut. Ins. Co. v. Chasen, 195 Ga. App. 875, 395 S.E.2d 40 (1990); Blackerby v. Henson, 201 Ga. App. 316, 411 S.E.2d 91 (1991); Wade v. Polytech. Indus., Inc., 202 Ga. App. 18, 413 S.E.2d 468 (1991); Peterson v. P.C. Towers, L.P., 206 Ga. App. 591, 426 S.E.2d 243 (1992); Paino v. Connell, 207 Ga. App. 553, 428 S.E.2d 446 (1993); Dowden v. American Tel. & Tel. Co., 211 Ga. App. 96, 438 S.E.2d 652 (1993); Teel v. Trust Co. Bank, 216 Ga. App. 493, 455 S.E.2d 312 (1995); Stuckey v. Storms, 265 Ga. 491, 458 S.E.2d 344 (1995); Staffing Resources, Inc. v. Nash, 218 Ga. App. 525, 462 S.E.2d 401 (1995); Shiver v. Norfolk-Southern Ry., 220 Ga. App. 483, 469 S.E.2d 769 (1996); Jayson v. Gardocki, 221 Ga. App. 455, 471 S.E.2d 545 (1996); Bonner v. Smith, 226 Ga. App. 3, 485 S.E.2d 214 (1997); Brown v. Little, 227 Ga. App. 484, 489 S.E.2d 596 (1997); Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848 (1997); United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998); Greer v. Davis, 244 Ga. App. 317, 534 S.E.2d 853 (2000); Reese v. City of Atlanta, 247 Ga. App. 701, 545 S.E.2d 96 (2001); Associated Doctors of Warner Robins, Inc. v. U.S. Foodservice of Atlanta, Inc., 250 Ga. App. 878, 553 S.E.2d 310 (2001); Sullivan v. Fredericks, 251 Ga. App. 790, 554 S.E.2d 809 (2001); Donald Azar, Inc. v. City of Atlanta, 254 Ga. App. 531, 562 S.E.2d 831 (2002); Williamson v. Dep't of Human Res., 258 Ga. App. 113, 572 S.E.2d 678 (2002); Giles v. Vastakis, 262 Ga. App. 483, 585 S.E.2d 905 (2003); Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003); Imperial Foods Supply, Inc. v. Purvis, 260 Ga. App. 614, 580 S.E.2d 342 (2003); M.J.E.S. Enters. v. Martin, 265 Ga. App. 652, 595 S.E.2d 367 (2004); Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004); Backensto v. Ga. DOT, 284 Ga. App. 41, 643 S.E.2d 302 (2007); Wright v. Piedmont Prop. Owners Ass'n, 288 Ga. App. 261, 653 S.E.2d 846 (2007); Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008); Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009), aff'd, 287 Ga. 406, 696 S.E.2d 640 (2010); Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009); Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894 (2012); Macfarlan v. Atlanta Gastroenterology Assocs., 317 Ga. App. 887, 732 S.E.2d 292 (2012); Vatacs Group, Inc. v. U.S. Bank, N.A., 292 Ga. 483, 738 S.E.2d 83 (2013); Kennedy Dev. Co. v. Newton's Crest Homeowners' Ass'n, 322 Ga. App. 39, 743 S.E.2d 600 (2013); Wright v. Safari Club Int'l, Inc., 322 Ga. App. 486, 745 S.E.2d 730 (2013); Babies Right Start v. Ga. Dep't of Pub. Health, 293 Ga. 553, 748 S.E.2d 404 (2013); Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575, 789 S.E.2d 194 (2016); In the Interest of M. P., 338 Ga. App. 696, 791 S.E.2d 592 (2016); GeorgiaCarry.Org, Inc. v. Code Revision Commission, 299 Ga. 896, 793 S.E.2d 35 (2016); Osprey Cove Real Estate, LLC v. Towerview Constr., LLC, 343 Ga. App. 436, 808 S.E.2d 425 (2017); Aaron v. Jekyll Island-State Park Authority, 348 Ga. App. 332, 822 S.E.2d 829 (2019); Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586 (2019); Ultra Group of Companies, Inc. v. Alli, 352 Ga. App. 71, 833 S.E.2d 751 (2019), cert. denied, No. S20C0336, 2020 Ga. LEXIS 421 (Ga. 2020); Cousin v. Tubbs, 353 Ga. App. 873, 840 S.E.2d 85 (2020); Atlanta Women's Specialists, LLC v. Trabue, Ga. , S.E.2d (Sept. 28, 2020).
Amendments, Generally
1. In General
Right to amend is very broad. Moore v. Bryan, 52 Ga. App. 272, 183 S.E. 117 (1935) (decided under former Code 1933, § 81-1301); Dalton Carpet Indus., Inc. v. Chilivis, 137 Ga. App. 266, 223 S.E.2d 460 (1976); McRae v. Britton, 144 Ga. App. 340, 240 S.E.2d 904 (1977); Cooper v. Mason, 151 Ga. App. 793, 261 S.E.2d 738 (1979).
Right to amend is very broad, and the practice of allowing amendments is very liberal. Wright v. Horne, 123 Ga. 86, 51 S.E. 30 (1905) (decided under former Code 1910, § 5681); Cox v. Georgia R.R. & Banking Co., 139 Ga. 532, 77 S.E. 574 (1913) (decided under former Code 1910, § 568l); Jenkins v. Lane, 154 Ga. 454, 115 S.E. 126 (1922) (decided under former Code 1910, § 5681); Richardson v. Hairried, 202 Ga. 610, 44 S.E.2d 237 (1947) (decided under former Code 1933, § 81-1301).
This state has a very liberal policy with regard to amendments. Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973); McRae v. Britton, 144 Ga. App. 340, 240 S.E.2d 904 (1977).
Failure to obtain written consent from adverse party or request leave.
- Trial court did not err in failing to recognize the plaintiff's second amended complaint because the plaintiff failed to obtain written consent from the defendants and did not even request leave from the trial court to file the second amended complaint. Bush v. Eichholz, 352 Ga. App. 465, 833 S.E.2d 280 (2019).
Insurer had a duty to provide a defense to the insurer's insured because a fact issue existed as to whether the insured's actions in the underlying incident were criminal and/or intentional; although a cross-appellant originally alleged an intentional act on the part of the insured, the cross-appellant removed all factual allegations of intentional conduct and amended the complaint to allege only negligence and gross negligence. In Georgia, a party's right to amend a complaint pursuant to O.C.G.A. § 9-11-15(a) was very liberal. Nationwide Mut. Fire Ins. Co. v. Kim, 294 Ga. App. 548, 669 S.E.2d 517 (2008).
Discretion of court.
- Right of amendment is very broad, as is discretion of trial court in controlling it, and unless there is a manifest abuse of the court's discretion it will not be controlled. Walker v. Sheehan, 80 Ga. App. 606, 56 S.E.2d 628 (1949) (decided under former Code 1933, §§ 81-1301 and 81-1302).
Trial court did not abuse the court's discretion in allowing a bank to reinstate the bank's claim for attorney fees and litigation expenses in an action against a property owner, seeking to re-establish its priority lien on the owner's property, as the bank had initially withdrawn that claim in order to expedite litigation and also based on the owner's promise to pursue expeditious litigation, wherein both parties agreed to avoid questioning a witness regarding bad faith, but the owner continued to pursue the questioning; further, such amendment was to be liberally allowed, the bank's intent to seek such an award was clear, and the owner was unable to show surprise or prejudice by allowance of the amendment. Schowalter v. Washington Mut. Bank, 275 Ga. App. 182, 620 S.E.2d 437 (2005).
Trial court's denial of the first insurer's motion for a directed verdict, pursuant to O.C.G.A. § 9-11-50, in the second insurer's declaratory judgment action regarding contested motor vehicle coverage, was proper as the second insurer met the three-step requirement for institution of a declaratory judgment action because there was no suit pending that could have gone into default or been prejudiced, the declaratory judgment action was timely filed, and it provided a reservation-of-rights letter which listed the insured's lack of cooperation as the basis for questioning coverage; although the second insurer later provided four additional reasons in the declaratory judgment action, including fraud and misrepresentation which was found by the jury, such additional reasons did not have to be set forth in the reservation-of-rights letter as amendments under O.C.G.A. § 9-11-15(a) were permissible. Gov't Emples. Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga. App. 872, 622 S.E.2d 92 (2005).
Trial court did not abuse the court's discretion by amending a pretrial order to allow for bifurcation of a trial, upon the motion of the defendants, because at the hearing on the motion to amend, the plaintiff never objected on the grounds that the timing of the motion to bifurcate caused any injustice; therefore, no reversible error occurred with regard to the plaintiff's timing argument. Bolden v. Ruppenthal, 286 Ga. App. 800, 650 S.E.2d 331 (2007), cert. denied, No. S07C1831, 2007 Ga. LEXIS 756 (Ga. 2007).
Subsection (a) is to be liberally construed in favor of allowance of amendments, particularly when the opposing party is not prejudiced thereby. MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 230 S.E.2d 26 (1976); Bourquine v. City of Patterson, 151 Ga. App. 232, 259 S.E.2d 214 (1979).
Cross-claim by codefendant.
- Pleadings must be treated as if amended to include cross-claiming codefendant's plea and prayer for compensation when the issue was tried by express or implied consent of the parties. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 898, 378 S.E.2d 312 (1989).
Proper standard must be applied.
- Trial court erred by denying the plaintiff's motions to amend the complaint as the motions related to the adding of parties because the motions failed to consider the proper standard for the addition of parties; the appellate court recognized the confusion caused by the plaintiff's filing of a motion for leave to add additional parties at the same time the plaintiff filed amended complaints to add new causes of action against the original defendants. Benedek v. Bd. of Regents of the Univ. Sys. of Ga., 332 Ga. App. 573, 774 S.E.2d 150 (2015).
Decisions to be made on merits, not technicalities.
- Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(f)), providing that pleadings be construed to do substantial justice, taken in conjunction with Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15), requires that decisions be made on the merits, not upon the niceties of pleadings. Owens v. Cobb County, 230 Ga. 707, 198 S.E.2d 846 (1973).
When the trial court denied a motion to amend a pretrial order strictly on the basis of delay, finding the case was scheduled for trial and had been on prior trial calendars, the court had to reconsider the motion under the proper balancing test. Total Car Franchising Corp. v. Squire, 259 Ga. App. 114, 576 S.E.2d 90 (2003).
Amendment is a resource against waste. McRae v. Britton, 144 Ga. App. 340, 240 S.E.2d 904 (1977).
If an amendment is germane to cause of action, the amendment should be allowed. McRae v. Britton, 144 Ga. App. 340, 240 S.E.2d 904 (1977).
Amendment in bond validation proceedings between hearing dates.
- Trial court did not err in refusing to allow citizens who intervened in a bond validation proceeding to amend the citizens' objections between hearing dates as untimely because the citizens were not surprised by the filing of the bond validation petitions, had already consulted counsel, and had sufficient time to prepare. Franzen v. Downtown Dev. Auth. of Atlanta, Ga. , 845 S.E.2d 539 (2020).
New cause of action.
- There is no prohibition against pleading a new cause of action by amendment. Dalton Carpet Indus., Inc. v. Chilivis, 137 Ga. App. 266, 223 S.E.2d 460 (1976); McRae v. Britton, 144 Ga. App. 340, 240 S.E.2d 904 (1977); Cooper v. Mason, 151 Ga. App. 793, 261 S.E.2d 738 (1979); Peterson v. American Int'l Life Assurance Co., 203 Ga. App. 745, 417 S.E.2d 402, cert. denied, 203 Ga. App. 907, 417 S.E.2d 402 (1992).
Nothing in O.C.G.A. § 9-11-9.1 or O.C.G.A. § 9-11-15 prohibited clients who sued a law firm and several attorneys, alleging legal malpractice, from amending the clients' complaint after the clients' claim was dismissed for failure to file the expert's affidavit required by O.C.G.A. § 9-11-9.1, in an effort to add claims sounding in something other than professional negligence. Smith v. Morris, Manning & Martin, LLP, 264 Ga. App. 24, 589 S.E.2d 840 (2003).
O.C.G.A. § 9-11-15(a) permits, but does not require, a party to respond to an amended pleading, and allegations in an amended petition are "deemed denied or avoided" even in the absence of an answer; a trial court erred in holding that a director was required to plead a conversion of stock counterclaim "upon receipt of the amended complaint." Sampson v. Haywire Ventures, Inc., 278 Ga. App. 525, 629 S.E.2d 515 (2006).
Striking original pleadings.
- Nothing in subsection (a) of this section prohibits amendment of the complaint by striking all the original pleadings. Stith v. Hudson, 231 Ga. 520, 202 S.E.2d 392 (1973).
Amendment to assert statute of limitations defense.
- Trial court did not abuse the court's discretion by permitting the insurance company to amend the company's answer to raise a statute-of-limitations defense to the tree service company owner's (owner's) personal injury claims after the entry of the pre-trial order because the owner failed to show any prejudice since the other defendants had raised the statute- of-limitations defense by the time the insurance company did, so the owner was on notice that the defense would be considered by the trial court. Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 798 S.E.2d 257 (2017).
When less than all of plaintiff's claims are added or dropped, the additions and deletions are not dismissals and renewals governed by O.C.G.A. §§ 9-2-61(a) and9-11-41(a), but simply amendments governed by the liberal amendment rules of subsections (a) and (c) of O.C.G.A. § 9-11-15. Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).
In a creditor's fraudulent transfer action against a guarantor and the guarantor's transferees, because the creditor properly withdrew the creditor's claims relating to certain Florida property by amendment under O.C.G.A. § 9-11-15, not a notice of dismissal under O.C.G.A. § 9-11-41, prior to any decision by the court to dismiss those claims, the trial court had no authority to rule on those claims. Cmty. & S. Bank v. Lovell, 302 Ga. 375, 807 S.E.2d 444 (2017).
Amendment to correct error in filing answer.
- Trial court did not abuse the court's discretion by striking the claimants' answers to the complaint in a forfeiture proceeding because the claimants were permitted by law to amend the claimants' answers to correct the lack of verification, but never did so and, although the claimants' claim that the trial court failed to afford the claimants an opportunity to amend the claimants' pleadings, the claimants failed to show that the trial court refused to consider such an amendment or did anything to preclude or bar the filing thereof. Howard v. State of Ga., 321 Ga. App. 881, 743 S.E.2d 540 (2013).
Amendment not permitted to relitigate causes of action already decided on summary judgment.
- Because no pre-trial order had been entered in the case, the plaintiffs had the right to file their third amended complaint; however, the plaintiffs did not have the right to re-litigate and provide additional evidence for identical causes of action that had been decided against the plaintiffs on summary judgment. Thus, the trial court properly refused to consider evidence filed in 2016 when considering causes of action that were resolved by the May 2011 summary judgment order and raised again in the third amended complaint. Lafontaine v. Alexander, 343 Ga. App. 672, 808 S.E.2d 50 (2017).
After remand from appellate court.
- After a trial court's summary judgment ruling was reversed by the appellate court and the case was remanded, the trial court did not err in allowing the defendant to amend the answer and the counterclaim under O.C.G.A. § 9-11-15 to add claims for compensatory and punitive damages as the action had not been fully adjudicated and claims remained after remand. Kace Invs., L.P. v. Hull, 278 Ga. App. 477, 629 S.E.2d 26 (2006).
Facts upon which court's venue depends may be added by amendment. Middlebrooks v. Daniels, 129 Ga. App. 790, 201 S.E.2d 338 (1973).
Legal guardians were entitled to amend the guardians' complaints to allege additional facts supporting venue in the county since the guardians initially filed their complaints, even after their cases had been moved to the trial court in a second county based on the fact that they initially only pled that venue was supported in the first county because that was where the truck collision occurred. However, their initial complaints were sufficient to support venue and their amended complaints added that the legal guardians learned that the truck owner had an office and transacted business in the initial county of filing and since that allegation was added to challenge the truck owner's assertions that venue was based solely on where the accident occurred and that there was an entitlement to move the lawsuits to the county where the owners had their principal place of business. Mohawk Indus. v. Clark, 259 Ga. App. 26, 576 S.E.2d 16 (2002).
Application of relation back statute to venue.
- Trial court did not err in denying a motion filed by a corporate president and the president's spouse to dismiss a corporation's action against them or, in the alternative, to transfer the case because the trial court's application of the relation-back statute, O.C.G.A. § 9-11-15(c), did not violate the constitutional right of the president and the spouse to be sued in the county where they resided under Ga. Const. 1983, Art. VI, Sec. II, Para. VI; because the president and the spouse were not residents of Georgia when the suit was filed, the proper venue had to be determined pursuant to Georgia's Long Arm Statute, O.C.G.A. §§ 9-10-91 and9-10-93. Cartwright v. Fuji Photo Film U.S.A., Inc., 312 Ga. App. 890, 720 S.E.2d 200 (2011), cert. denied, No. S12C0600, 2012 Ga. LEXIS 306 (Ga. 2012).
Complaint may be amended so as to validate service of process. Leniston v. Bonfiglio, 138 Ga. App. 151, 226 S.E.2d 1 (1976). For comment, see 28 Mercer L. Rev. 559 (1977).
Omission to give court jurisdiction in the pleadings is amendable. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551, 183 S.E. 924 (1936) (decided under former Code 1933, § 81-1309).
Amendment by substitution of affidavit permissible.
- When the plaintiff filed a valid affidavit as a substitute for a defective one before the court ruled on the defendant's motion to dismiss, this amendment by substitution was as permissible as an amendment by striking from or adding to the contents of the paper which it is sought to amend. Phoebe Putney Mem. Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998).
Allowing amendment of complaint to seek damages was not an abuse of discretion by the court. Glynn-Brunswick Mem. Hosp. Auth. v. Gibbons, 243 Ga. App. 341, 530 S.E.2d 736 (2000).
No requirement to answer amended complaint.
- Allegations of an amended complaint were deemed denied by operation of law, and because the holding in Division 1 of Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 249 Ga. 418, 420, 291 S.E.2d 698 (Ga. 1982), and its progeny, e.g., Wilson Welding Service v. Partee, 234 Ga. App. 619, 620, 507 S.E.2d 168 (Ga. Ct. App. 1998), conflicted with that rule of law, those decisions were overruled; a trial court erred in holding that a defendant was required to answer an amended complaint to avoid a default and in defaulting a defendant upon a failure to answer an amended complaint. Shields v. Gish, 280 Ga. 556, 629 S.E.2d 244 (2006).
Amendment of admissions not a pleading.
- Response to requests for admission is not a pleading as pleadings are defined as seven specific filings, including a complaint and an answer and case law distinguishes an amendment of a complaint from the withdrawal or amendment of admissions, which are governed by different statutory procedures and schemes. Brougham Casket & Vault Co., LLC v. DeLoach, 323 Ga. App. 701, 747 S.E.2d 707 (2013).
Venue of affidavit.
- When heading of venue of an affidavit was by mistake incorrectly stated to be in a state and county other than the state and county where it was actually signed and sworn to, but it appeared from the jurat that it was signed and sworn to in the proper jurisdiction, the judge did not err in allowing the affidavit to be amended by inserting proper venue. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551, 183 S.E. 924 (1936) (decided under former Code 1933, § 81-1309).
Reduction of amount claimed to jurisdictional limitation of court.
- Cross-action may be amended to reduce amount claimed to a sum within the jurisdictional limitation of the court. Allied Enters., Inc. v. Brooks, 93 Ga. App. 832, 93 S.E.2d 392 (1956) (decided under former Code 1933, § 81-1301).
Amendment pleading law of foreign state.
- Original complaint seeking recovery for wrongful death of spouse sufficiently stated cause of action as measured by standards of notice pleading, and an amendment pleading the applicable law of North Carolina was allowable and would relate back to the filing of the original complaint. Atlanta Newspapers, Inc. v. Shaw, 123 Ga. App. 848, 182 S.E.2d 683 (1971).
Failure to verify, if required, is an amendable defect. Rigby v. Powell, 233 Ga. 158, 210 S.E.2d 696 (1974), overruled on other grounds, Wilson v. Nichols, 253 Ga. 84, 316 S.E.2d 752 (1984); MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 230 S.E.2d 26 (1976).
Condemnation proceedings.
- Amendment with regard to condemnation proceedings is perfectly proper when the amendment's allowance does not adversely and substantially affect the condemnee's rights. Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973).
Amendment in condemnation proceedings, effect of which was to limit condemnor's use of the land condemned, did not amount to abandonment, nor to a substantial change such as would require that it be stricken, and until final judgment was reached, there was no impediment to such amendment. Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973).
Forfeiture proceedings.
- Since the claimant contesting the forfeiture of property was authorized to amend the claimant's answer to a forfeiture complaint, the court erred in granting the state's motion to strike the amendment. Jackson v. State, 231 Ga. App. 320, 498 S.E.2d 159 (1998).
Garnishment proceedings.
- Prior to judgment thereon, a motion filed to modify and reduce a garnishment judgment under O.C.G.A. § 18-4-91 may be retroactively amended to substitute the name and signature of a licensed Georgia attorney pursuant to O.C.G.A. § 9-11-15. North Ga. Medical Ctr. v. Food Lion, Inc., 238 Ga. App. 78, 517 S.E.2d 799 (1999).
Amendment to add defense.
- In an action for breach of a lease agreement, the trial court did not abuse the court's discretion in denying the defendants' attempt to amend the defendants' answer to add a defense of condemnation. Ford's & Gantt Co. v. Wallace, 249 Ga. App. 273, 548 S.E.2d 31 (2001).
Affirmative defenses.
- While bringing in affirmative defense of denial of performance or occurrence of conditions precedent 15 months after filing of an original answer is not beneficial to the orderly disposition of a case, it is nevertheless permitted. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974).
Trial court did not abuse the court's discretion in granting the defendant's motion to amend a pretrial order for the purpose of adding the affirmative defenses of unconscionability, illegality, and fraud because the defendant had raised the defenses on motion for summary judgment and there was neither prejudice arising out of surprise nor waiver as a matter of law. Driggers v. Campbell, 247 Ga. App. 300, 543 S.E.2d 787 (2000).
Amendment a matter of right before entry of pretrial order.
- Subsection (a) of this section allows amendment as a matter of right before entry of a pretrial order. Clover Realty Co. v. Todd, 237 Ga. 821, 229 S.E.2d 649 (1976).
Amendments may be filed at any time before entry of a pretrial order without permission of the court. Newbern v. Chapman Funeral Chapel, 158 Ga. App. 790, 282 S.E.2d 379 (1981).
Because the trial court had not entered a pretrial order, a patient's spouse was entitled to amend a medical malpractice complaint after the patient's death to add a wrongful death claim as a matter of course and without leave of court. Wesley Chapel Foot & Ankle Ctr., LLC v. Johnson, 286 Ga. App. 881, 650 S.E.2d 387 (2007), cert. denied, No. S07C1879, 2007 Ga. LEXIS 820 (Ga. 2007).
Trial court did not err in considering the claims that a plaintiff asserted in two amendments to a petition, although the amendments were filed after an order granting dissolution of a limited liability company was entered, because the judgment on the dissolution petition was not a final judgment, the defendant's counterclaim had yet to be heard, and no pretrial order had been filed at the time the amendments were made. Moses v. Pennebaker, 312 Ga. App. 623, 719 S.E.2d 521 (2011).
Amendment compromising class action not allowed as matter of right.
- General rule permitting amendment as a matter of course and without leave of court before entry of pretrial order has no application in respect to a class action, if the proposed amendment would have the effect of compromising the claim. Murphy v. Hope, 229 Ga. 836, 195 S.E.2d 24 (1972).
Amendments allowed before pretrial order in special statutory proceedings.
- State should have been allowed to amend the action to make the Code section conform to the allegations contained in the condemnation action since the property seized was a result of a gambling offense, not a drug offense and although these offenses are special statutory proceedings, the Civil Practice Act, O.C.G.A. Ch. 11. T. 9, is applicable. State v. Walls, 202 Ga. App. 899, 415 S.E.2d 921 (1992).
Expert affidavits in malpractice actions.
- Expert affidavits, which the plaintiffs had filed in an earlier action against the defendants for medical malpractice, functioned as an amendment to the plaintiffs' complaint in a subsequent action against the defendants since the affidavits were attached to the plaintiffs' response to the defendants' motion to dismiss. Bell v. Figueredo, 259 Ga. 321, 381 S.E.2d 29 (1989).
Failure to attach supporting affidavit to professional malpractice complaint was an amendable defect under subsection (a) of O.C.G.A. § 9-11-15 since the plaintiffs had obtained the affidavit before filing suit and had simply neglected to file the affidavit with the plaintiffs' complaint. St. Joseph's Hosp. v. Nease, 259 Ga. 153, 377 S.E.2d 847 (1989).
Failure to file an expert's affidavit with a complaint for professional malpractice, as required by O.C.G.A. § 9-11-9.1, is an amendable defect, at least when the plaintiff has obtained the affidavit prior to filing the complaint and the failure to file the affidavit was the result of a mistake. Reid v. Brazil, 193 Ga. App. 1, 387 S.E.2d 1, cert. denied, 193 Ga. App. 910, 387 S.E.2d 1 (1989).
Malpractice plaintiffs' purported amendment did not remedy the deficiency in the plaintiffs' complaint concerning the plaintiffs' failure to file the expert affidavit required by O.C.G.A. § 9-11-9.1. Anderson v. Navarro, 227 Ga. App. 184, 489 S.E.2d 40 (1997).
Trial court did not err in denying dismissal of a patient's medical malpractice complaint against the physicians and their employers, based on the physicians' claim that the patient failed to file a timely expert affidavit which raised the claim of lack of informed consent, as required by O.C.G.A. § 9-11-9.1, as the patient's initial complaint had an expert affidavit timely filed, and thereafter, an amended affidavit asserting the lack of informed consent was filed pursuant to O.C.G.A. § 9-11-15; dismissal was not warranted unless an expert affidavit was never initially filed in a timely manner. Bhansali v. Moncada, 275 Ga. App. 221, 620 S.E.2d 404 (2005).
Trial court erred in dismissing a client's amended legal malpractice complaint, which included fraud and breach of fiduciary duty, as the client's failure to file an expert affidavit pursuant to O.C.G.A. § 9-11-9.1 did not result in an automatic adjudication on the merits or preclude amendment after the expiration of the relevant statute of limitation; further, the appeals court disagreed that the client's fraud and breach of fiduciary duty claims were barred because those claims arose from the same factual allegations, as the original claim for professional negligence, and because the fraud claim was grounded in intentional conduct, the claim did not need to be accompanied by an expert affidavit. Shuler v. Hicks, Massey & Gardner, LLP, 280 Ga. App. 738, 634 S.E.2d 786 (2006).
Amendment of complaint in medical malpractice action to cure defective affidavit allowed.
- In a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure that defect by filing an amended complaint with the affidavit of a second, competent expert. Gala v. Fisher, 296 Ga. 870, 770 S.E.2d 879 (2015).
Amendment of medical malpractice complaint to include statement regarding failure to attach affidavit.
- When a medical malpractice complaint, filed within 10 days of the expiration of the statute of limitations, stated that an affidavit would be filed within the extended filing time, and the affidavit was filed within that time, the plaintiff could amend the complaint to include the required language that the affidavit could not be prepared because of time constraints. Glisson v. Hospital Auth., 224 Ga. App. 649, 481 S.E.2d 612 (1997).
O.C.G.A. § 9-11-15 allows a plaintiff to amend the complaint to comply with O.C.G.A. § 9-11-9.1(b) (now (e)) within 45 days of filing and thereby trigger the automatic extended filing period. Peterson v. Columbus Med. Ctr. Found., Inc., 243 Ga. App. 749, 533 S.E.2d 749 (2000).
Amended complaint to remove barred malpractice claim and assert timely misdiagnosis claim.
- Patient effectively amended the patient's complaint to remove the claim that the doctor committed medical malpractice during the surgery as that claim was barred by the statute of limitations and asserted a timely claim that the doctor failed to diagnose a surgery-related injury resulting from a known complication of surgery during a follow-up visit. Smith v. Danson, 334 Ga. App. 865, 780 S.E.2d 481 (2015).
Amendment during pretrial conference.
- State has right to amend as matter of right during the pretrial conference, which is delineating the issues and contentions of the parties, but prior to the taking of the evidence. State v. Croom, 168 Ga. App. 145, 308 S.E.2d 427 (1983).
Pretrial proceedings end with final commencement.
- Reasonable intendment of O.C.G.A. § 9-11-15 is that after the time for a pretrial conference has passed and neither the court nor the parties have insisted upon the entry of a pretrial order and no such order is entered, pretrial proceedings end with the commencement of the trial proper and the taking of evidence. The unfettered right to amend ceases and a party may amend a party's pleading only by leave of court or by the consent of the adverse party. Black v. Lowry, 159 Ga. App. 57, 282 S.E.2d 700 (1981).
Once pretrial order has been entered, party may not amend without leave of court or consent of the opposite party as entry of such order limits the issues for trial to those not disposed of by admissions and agreement of counsel, and controls the subsequent course of the action, unless modified at trial to prevent manifest injustice. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980).
Prior to 1968, Georgia practice permitted a very liberal right of amendment to the pleadings, the genesis of which is apparently in Ga. L. 1853-54, pp. 48-49, authorizing amendment in any stage of the cause; however, as amended in 1968, subsection (a) of this section now provides that amendments, except to conform to the evidence, are permitted after entry of a pretrial order only by leave of court or written consent of the adverse party. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974).
Entry or pretrial order determinative.
- Under subsection (a) of this section, it is the entry of a pretrial order, not the pretrial conference, which is determinative of when an amendment is proper as a matter of course. Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976).
Pretrial order not modified on trial date.
- Trial court did not err in refusing to modify a pretrial order when the motion was not made until the date set for trial. Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298 (1988).
Amendment prior to pretrial order seeking sum then overdue.
- Trial court did not err in granting judgment for the sums prayed for in the first amendment when the first amendment to the dispossessory action was filed pursuant to O.C.G.A. § 9-11-15 before any pretrial order was issued, and it sought judgment for rent installments that were then overdue. Peterson v. American Int'l Life Assurance Co., 203 Ga. App. 745, 417 S.E.2d 402, cert. denied, 203 Ga. App. 907, 417 S.E.2d 402 (1992).
Amendments after entry of pretrial order are to be liberally granted by the court as justice requires. Midtown Properties, Inc. v. George F. Richardson, Inc., 139 Ga. App. 182, 228 S.E.2d 303 (1976).
In considering belated motions to amend pleadings, a judge must freely allow amendment when justice so requires. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 234 S.E.2d 104 (1977).
Amendment allowed when evidence, no pretrial order.
- When there was evidence in the record to support the plaintiff's claim, and when no pretrial order had been entered, the court erred in refusing to allow the plaintiff to amend the plaintiff's complaint to include the claim. Carpet Cent., Inc. v. Johnson, 222 Ga. App. 26, 473 S.E.2d 569 (1996).
Effect on judicial admissions.
- If the party amended the party's pleadings to withdraw the party judicial admissions, the party could introduce evidence contravening the admissions, and if such contradictory evidence was admitted, even over the objection of the other party, then under O.C.G.A. § 9-11-15(b), such evidence could be deemed to amend the pleadings to withdraw the admissions. SAKS Assocs., LLC v. Southeast Culvert, Inc., 282 Ga. App. 359, 638 S.E.2d 799 (2006).
Amendment to conform to evidence.
- Because it was undisputed that the ultimate issue for trial was whether an option contract between the decedent and the decedent's son covered all, or only some, of the decedent's land, and considerable evidence was presented on that issue at trial, the son's amended pleading to conform to that evidence was properly allowed in order to subserve the presentation of the merits of the action, and the estate failed to show that the estate was prejudiced by the allowance. Morris v. Morris, 282 Ga. App. 127, 637 S.E.2d 838 (2006).
In exercising discretion to allow amendment, judge should balance possible prejudice to nonmoving party with moving party's reason for delay. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 234 S.E.2d 104 (1977); Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977); Bourquine v. City of Patterson, 151 Ga. App. 232, 259 S.E.2d 214 (1979).
Mere delay in seeking leave to amend is not sufficient reason for denial. MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App 41, 230 S.E.2d 26 (1976); Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977).
Diligence of party not irrelevant.
- Subsection (a) of this section does not mean that amendments will be allowed regardless of the diligence of a party. Blount v. Kicklighter, 125 Ga. App. 159, 186 S.E.2d 543 (1971).
Court abuses the court's discretion in refusing to allow a party leave to amend when that party sought in good faith to correct an inadvertent oversight on behalf of its counsel and there was no prejudice to the opposing party. MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 230 S.E.2d 26 (1976).
Grant of divorce on motion for judgment on pleadings is not pretrial order which terminates unrestricted right to amend pleadings. Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979).
Leave required for amendment after order adopting findings of special master.
- Entry of order making special master's findings of fact that the judgment of the court is an event which requires leave of court or consent of the adverse party to file an amendment. Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973).
Denial of motion to strike amendment is tantamount to leave of court to file such amendment. Brookshire v. J.P. Stevens Co., 133 Ga. App. 97, 210 S.E.2d 46 (1974).
Denial of summary judgment as implicit approval of amendment.
- Although personal injury plaintiff never sought leave of court to add defendants, the trial court's denial of patron-defendant's motion for summary judgment, made on the ground that no motion for leave to amend was filed, amounted to an implicit approval of the plaintiff's amendment. Good Ol' Days Downtown, Inc. v. Yancey, 209 Ga. App. 696, 434 S.E.2d 740 (1993).
Defendant did not waive the statute of limitation defense by failing to assert the defense in the defendant's original answer, when such defense was properly asserted by the defendant's amendment to the defendant's answer. Gober v. Hospital Auth., 191 Ga. App. 498, 382 S.E.2d 106 (1989).
Waiver of statute of limitation if not raised prior to pretrial order.
- Although statute of limitation is waivable, it may be raised by amendment; but such defense is waived by failure to raise the issue prior to a pretrial order. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980).
Grant of new trial is a de novo proceeding insofar as the right to amend by supplying additional germane allegations of fact is concerned. Sirmans v. Citizens & S. Nat'l Bank, 132 Ga. App. 894, 209 S.E.2d 697 (1974).
Certification of service of amendment.
- Under subsection (a) of Ga. L. 1968, p. 1104, § 4 (see now O.C.G.A. § 9-11-15) and Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5), party amending a pleading need only certify service of the amendment on the other party's counsel by mail contemporaneous with filing of the amendment. Locklear v. Morgan, 127 Ga. App. 326, 193 S.E.2d 208 (1972).
Response to amendment not required.
- This section allows a response to an amended pleading, but does not require such a response. Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666 (1977).
Amendment to reflect partnership status.
- When the complaint was brought in a name which indicated a corporate entity, the trial court erred in dismissing the complaint and denying the plaintiffs' motion to amend the plaintiffs' complaint to declare its true status as a partnership. Holliday Constr. Co. v. Higginbotham, 170 Ga. App. 114, 316 S.E.2d 560 (1984).
Failure to attach exemplified copy of foreign divorce decree is amendable defect. A former wife's failure to verify and attach an exemplified copy of a foreign divorce decree to her petition against her former husband for modification of child support was an amendable defect; her petition was amendable as a matter of right prior to entry of a pretrial order. Hutto v. Plagens, 254 Ga. 512, 330 S.E.2d 341 (1985).
Specifying correct court in petition.
- Failure to address a petition to a specific court is an amendable defect. Mincey v. Stamper, 253 Ga. 301, 319 S.E.2d 857 (1984).
Even though the original petition was never formally amended to cure a failure to specify a court, the defect was not a ground for dismissal when the defendant admitted service of the petition and answered the petition in the correct court. Mincey v. Stamper, 253 Ga. 301, 319 S.E.2d 857 (1984).
Verification of pleadings.
- When verification of pleadings is required by statute, the lack thereof has been considered to be a mere procedural defect in the form of the pleading and readily amendable pursuant to subsection (a) of O.C.G.A. § 9-11-15. Ballard v. Frey, 179 Ga. App. 455, 346 S.E.2d 893 (1986).
Delay in ruling on motion to amend until after commencement of trial.
- When appellees' motion to amend was made prior to commencement of trial, but was not ruled upon until trial had progressed somewhat, there was no error in permitting amendment at that time, inasmuch as the appellees had an unfettered right to amend their answer when the motion was made. Slater v. Jackson, 163 Ga. App. 342, 294 S.E.2d 557 (1982).
Timeliness of amendment.
- When a motion to amend was filed on the last business day prior to beginning of trial which was more than six months after the date of the pretrial order, and when the record contained no showing of a lack of laches or inexcusable delay, there was no abuse of the trial court's discretion in the court's denial of the plaintiff's motion to amend. Mulkey v. GMC, 164 Ga. App. 752, 299 S.E.2d 48 (1982), rev'd on other grounds, 251 Ga. 32, 302 S.E.2d 550 (1983).
Since there was no pretrial order issued in the case, the amended complaint, supported by the affidavit which was filed and served on the day preceding the hearing, could not properly be disallowed based upon untimeliness under the local rule. Gilbert v. Decker, 165 Ga. App. 11, 299 S.E.2d 65 (1983).
When the plaintiffs amended the plaintiffs' complaint to plead special damages by dollar amount pursuant to a court order which gave no deadline for compliance, the amendment, filed prior to the entry of a pretrial order, was proper and timely and should have been considered by the trial court. Torok v. Yost, 194 Ga. App. 94, 389 S.E.2d 793, cert. denied, 194 Ga. App. 912, 389 S.E.2d 793 (1989).
Buyer's request to amend the buyer's complaint to seek reformation of two installment contracts for the purchase of certain land was timely since the request was made in the absence of a pre-trial order and prior to the taking of any evidence at trial. L.S. Land Co. v. Burns, 275 Ga. 454, 569 S.E.2d 527 (2002).
Expired lien claim.
- O.C.G.A. § 9-11-15 does not allow for the amendment of an expired claim of lien pursuant to the three month limitations period of O.C.G.A. § 44-14-361.1(a)(2). Tri-City Constr. Co. v. Sandy Plains Partnership, 206 Ga. App. 506, 426 S.E.2d 57 (1992).
When time for pretrial conference has passed and neither the court nor a party has insisted upon the entry of a pretrial order and no such order had been issued, a party's unfettered right to amend ceases upon the commencement of the trial proper and the taking of evidence, but when an amendment was filed and served the morning of trial, since no pretrial order had been issued and the plaintiff's amendment was filed and served prior to the commencement of trial, the amendment should have been permitted as a matter of right. Jackson v. Paces Ferry Dodge, Inc., 183 Ga. App. 502, 359 S.E.2d 412 (1987).
New defendant must be served.
- While subsection (a) of O.C.G.A. § 9-11-15, in conjunction with O.C.G.A. § 9-11-21, is authority for a trial court to grant a motion to add a party to a pending action, the grant of such a motion does not dispense with the requirement that a new defendant be served. Gaskins v. A.B.C. Drug Co., 183 Ga. App. 518, 359 S.E.2d 364 (1987).
Amendment of action for equitable partition of real property was properly allowed to include a claim for wrongful foreclosure based on events that happened after the filing of the action. Blanton v. Duru, 247 Ga. App. 175, 543 S.E.2d 448 (2000).
Mandatory amendment of pretrial order.
- Rule relating to the mandatory amendment of a pretrial order (as a pleading) when no objection is made to the introduction of evidence on an issue that is excluded from a pretrial order applies even more emphatically when the issue is raised in the pleadings, is tried by express or implied consent, and is sought to be preserved by amendment of a pretrial order. Galletta v. Hillcrest Abbey W., Inc., 185 Ga. App. 20, 363 S.E.2d 265 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 265 (1988).
Amendment of complaint after reversal.
- Complaint cannot be amended under subsection (a) of O.C.G.A. § 9-11-15 in a new trial after a reversal without leave of the court or the written consent of an adverse party when a pretrial order was entered in the first trial. Kirkland v. Southern Disct. Co., 187 Ga. App. 453, 370 S.E.2d 640 (1988), cert. denied, 187 Ga. App. 453, 370 S.E.2d 640 (1989).
Failure on appeal to show that trial court prevented amendment.
- Chief executive officer's (CEO) claim that the trial court should have allowed the CEO to amend the complaint was rejected as the CEO failed to show that the trial court prevented the CEO from amending the complaint. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).
Amendment of habeas petition before hearing allowed.
- Habeas court severed count one of a state habeas corpus petition and, following a hearing, granted relief on this count. When the order granting relief on count one was reversed on appeal, all the other issues in the petition remained "still pending," and the defendant was entitled to amend the defendant's petition as of right at any time before the hearing on these remaining issues. Nelson v. Zant, 261 Ga. 358, 405 S.E.2d 250 (1991).
Amendment after party repositioned as plaintiff.
- When a debtor who filed counterclaims against a collection agency was repositioned as the plaintiff after the agency's complaint was dismissed, the debtor was free to add additional claims under O.C.G.A. § 9-11-15(a). 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007).
Effect on removal.
- Because an employer should not have removed an employee's discrimination case until the state court had ruled on the employee's motion to amend the complaint to add federal claims, there was no basis for removal under 28 U.S.C. § 1446, and removal was premature, requiring remand to state court under 28 U.S.C. § 1447(c). Even though O.C.G.A. § 9-11-15(a) allowed amendment as a matter of course without leave of court, the record did not contain a copy of the amended complaint and there was no indication as to whether a pretrial order or consent agreement limiting the time for amendments to pleadings existed. Jackson v. Bluecross & Blueshield of Ga., Inc., F. Supp. 2d (M.D. Ga. Nov. 10, 2008).
Consent to implied amendment of pleadings.
- By failing to make a contemporaneous objection to documentary evidence and testimony of a landlord's principal, a tenant consented under O.C.G.A. § 9-11-15(b) to the implied amendment of the pleadings to include a claim for the additional unpaid rent; it was not until closing argument that the tenant objected and raised for the first time the issue of whether the landlord could seek rent that had become overdue after the filing of the complaint. Westmoreland v. JW, LLC, 313 Ga. App. 486, 722 S.E.2d 102 (2012).
2. Name or Capacity of Party; New Parties
Section in pari materia with § 9-11-21. - When a party seeks to add a new party by amendment, O.C.G.A. § 9-11-15 must be read in pari materia with O.C.G.A. § 9-11-21, which allows the dropping and adding of parties only "by order of the court on motion of any party." When no such motion or leave of court was granted, the trial court improperly denied the "amended" defendant's motion to dismiss. Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 428 S.E.2d 379 (1993).
In a personal injury action, and by reading O.C.G.A. § 9-11-15(a) in pari materia with O.C.G.A. § 9-11-21, because a plaintiff sued two parties, but substituted only one, the partnership originally sued was not required to file an answer absent an order from the court to do so, and hence could not be found in default; as a result, the trial court correctly found a proper case was made for the default to be opened. Marwede v. EQR/Lincoln L.P., 284 Ga. App. 404, 643 S.E.2d 766 (2007), cert. denied, 2007 Ga. LEXIS 504 (Ga. 2007).
Subsequently-named corporation lacked standing to appeal from orders against the previously-named corporation as that corporation was not a party to the litigation, was not granted or denied intervention pursuant to a motion to amend with leave of court, and an attempted substitution by the predecessor was more than an attempt to correct a misnomer. Degussa Wall Sys. v. Sharp, 286 Ga. App. 349, 648 S.E.2d 687 (2007), cert. denied, 2007 Ga. LEXIS 701 (Ga. 2007).
When O.C.G.A.
§ 9-11-21 does not apply. - When there is a substitution by amendment of a "John Doe" or "Jane Doe" named in the original complaint for the real defendant, O.C.G.A. § 9-11-21 does not apply and subsection (c) of O.C.G.A. § 9-11-15 is applicable; therefore, leave of court is not necessary for the substitution. Smith v. Vencare, Inc., 238 Ga. App. 621, 519 S.E.2d 735 (1999).
Although a borrower failed to obtain the state court's leave before filing a third amended complaint, as required by O.C.G.A. § 9-11-21, the amended complaint was not ineffective to add a non-diverse attorney and law firm, and the federal district court was able to consider the attorney and law firm in determining the existence of diversity jurisdiction for purposes of the borrower's motion for remand under 28 U.S.C. § 1447; because the attorney and law firm were substituted for John Does named in the original complaint, O.C.G.A. § 9-11-21 did not apply, rather, O.C.G.A. § 9-11-15(c), which allowed for the substitution by amendment of a John Doe without the state court's leave applied; accordingly, the amendment became effective when the amendment was filed, meaning complete diversity of citizenship did not exist, and remand of the matter to the state court was appropriate. Peachtree/Stratford, L.P. v. Phoenix Home Life Ins. Co., F. Supp. 2d (N.D. Ga. May 2, 2006).
Signed amended answer cured failure to sign original answer.
- Trial court properly found that a client's failure to sign the original answer to a law firm's complaint on an open account was an amendable defect which was cured by subsequently-filed signed and verified amended answers under O.C.G.A. § 9-11-15(a) because the amended answers were filed before the entry of any pretrial order and the firm did not show that the firm's case was prejudiced; the original answer was not a nullity under O.C.G.A. § 9-11-1(a) because the client's name on the signature line, placed there at the client's request by an attorney who represented the client in a divorce, evinced the client's intent to answer the complaint. Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816, 640 S.E.2d 343 (2006).
Name of either plaintiff or defendant may be corrected by amendment prior to judgment, so long, at least, as the name by which the originally designated party is described imports a person, firm, or corporation, even though it is in fact not so. Locklear v. Morgan, 127 Ga. App. 326, 193 S.E.2d 208 (1972).
Section controls over
§ 9-10-132 in case of misnomer. - To the extent that O.C.G.A. §§ 9-10-132 and9-11-15 are inconsistent, the latter expression of the legislature, O.C.G.A. § 9-11-15, controls. When a party named in a complaint is reasonably recognizable as a misnomer for the real party in interest, the misnomer may be corrected by amendment to the pleadings pursuant to O.C.G.A. § 9-11-15. United States Xpress, Inc. v. W. Timothy Askey & Co., 194 Ga. App. 730, 391 S.E.2d 707 (1990).
Misnomer in name of corporation can be corrected by amendment. Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977).
When the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment. Block v. Voyager Life Ins. Co., 251 Ga. 162, 303 S.E.2d 742 (1983).
Because the named corporation should have known that there was a mistake in the corporate identity, so that the mistake should not have delayed the trial, dismissal of the entire case as to all parties was an abuse of discretion. Smith v. Vencare, Inc., 238 Ga. App. 621, 519 S.E.2d 735 (1999).
Correction of misnomer did not constitute substitution of parties under O.C.G.A.
§ 9-10-132 or amendment of complaint under O.C.G.A. § 9-11-15(a). - Consumer's lawsuit against a telecommunications company was improperly dismissed because the consumer had effected service, but had wrongly named the company, and correction of the misnomer did not constitute a substitution of the parties under O.C.G.A. § 9-10-132 or an amendment of the complaint under O.C.G.A. § 9-11-15(a); thus, the consumer should not have been required to effect service on the company a second time. Mathis v. BellSouth Telecomms., Inc., 301 Ga. App. 881, 690 S.E.2d 210 (2010).
Amendment to correct party name.
- Erroneous name of a defendant may be amended to correct the name, even after the statute of limitations has run. London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 212 S.E.2d 21 (1975).
When real defendant has been properly served, the plaintiff has right to amend in order to correct a misnomer; correction of a misnomer involves no substitution of parties and does not add a new and distinct party. London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 212 S.E.2d 21 (1975).
Plaintiff who has sued the wrong defendant may move to amend the plaintiff's pleading after the statute of limitation has run and that amendment will relate back to the time of the original pleading if the proper defendant has received actual notice and knew or should have known that, but for the plaintiff's mistake, it would have been the party sued. Ciprotti v. United Inns, Inc., 209 Ga. App. 457, 433 S.E.2d 585 (1993).
Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. Khawaja v. Lane Co., 239 Ga. App. 93, 520 S.E.2d 1 (1999).
O.C.G.A. § 9-11-15(a) allows a party to amend his or her pleadings as a matter of course and without leave of court at any time before the entry of a pretrial order. But, when a party seeks to amend the party's complaint to add a new party, O.C.G.A. § 9-11-15(a) must be read in pari materia with O.C.G.A. § 9-11-21, which requires a court order to add or drop parties. La Mara X, Inc. v. Baden, 340 Ga. App. 592, 798 S.E.2d 105 (2017).
Defendant must have notice before amendment to correct misnomer.
- After the plaintiff named the wrong corporate defendant in the plaintiff's original complaint and, after expiration of the statute of limitations, served an amended complaint on the proper company, such service did not meet the requirements of O.C.G.A. § 9-11-15 because the plaintiff failed to contradict evidence that the company was unaware of and had no notice of the action until the company was served with the amended complaint. American Transp., Inc. v. Thompson, 218 Ga. App. 54, 460 S.E.2d 298 (1995).
Capacity of plaintiff.
- Amendment changing capacity in which the plaintiff brings an action is permissible even after the statute of limitations has run, and since such amendment does not change the parties before the court, the amendment should be liberally granted. Atlanta Newspapers, Inc. v. Shaw, 123 Ga. App. 848, 182 S.E.2d 683 (1971); C & S Land, Transp. & Dev. Corp. v. Yarbrough, 153 Ga. App. 644, 266 S.E.2d 508 (1980).
Complaints may be amended to change the capacity of the plaintiff, as well as to add new plaintiffs. Morris v. Chewning, 201 Ga. App. 658, 411 S.E.2d 891 (1991).
Although an estate's malpractice action was not initially brought by the real party in interest - the estate's administrator - the administrator was timely substituted as the plaintiff in the action by amendment which, under O.C.G.A. § 9-11-17(a), had the same effect as if the action had been commenced by the real party in interest. Thus, the suit was not time-barred by O.C.G.A. § 9-3-71(b)'s five-year repose period, and a doctor and the health care facilities were not entitled to summary judgment. Memar v. Styblo, 293 Ga. App. 528, 667 S.E.2d 388 (2008).
Subsection (a) to be read in pari materia with
§ 9-11-21 when new party added. - When a party seeks to add a new party by amendment, subsection (a) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15) must be read in pari materia with Ga. L. 1966, p. 609, § 21 (see now O.C.G.A. § 9-11-21), which allows dropping and adding of parties only by order of the court on motion. Clover Realty Co. v. Todd, 237 Ga. 821, 229 S.E.2d 649 (1976), cert. denied, 198 Ga. App. 898, 400 S.E.2d 388 (1991); Slater v. Brigadier Homes, Inc., 198 Ga. App. 67, 400 S.E.2d 338 (1990).
Adding or dropping parties.
- In order for an additional party to be added to an existing suit by amendment, leave of court must first be sought and obtained pursuant to O.C.G.A. § 9-11-21. Among the factors to be considered by the trial court in determining whether to allow the amendment are whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. Aircraft Radio Systems, Inc. v. Von Schlegell, 168 Ga. App. 109, 308 S.E.2d 211 (1983).
Court order is required to add or drop parties under O.C.G.A. § 9-11-21, and even the liberal amendment provisions of O.C.G.A. § 9-11-15 are limited by this requirement. Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).
In an action arising from an automobile accident the injured persons met the requirements for effecting an amendment under O.C.G.A. § 9-11-15(c) to add the driver's employer because the amendment arose out of the same occurrence as the original complaint, the employer, a wholly-owned subsidiary of the named defendant, had notice of the action, was not prejudiced, and knew or should have known it would have been named a defendant but for a mistake, the trial court abused the court's discretion in denying the motion for leave to amend. Rasheed v. Klopp Enters., 276 Ga. App. 91, 622 S.E.2d 442 (2005).
In a personal injury action, a trial court did not abuse the court's discretion by refusing to permit the plaintiff to add a defendant because, under these circumstances, the plaintiff identified the additional party in the plaintiff's amended complaint as a negligent party nearly four months before the expiration of the statute of limitations; the proposed added party met the burden of showing that there was no mistake concerning the proposed added party's identity and that O.C.G.A. § 9-11-15(c) was inapplicable. Steed v. Wellington Healthcare Servs., LLC, 285 Ga. App. 446, 646 S.E.2d 517 (2007), cert. denied, 2007 Ga. LEXIS 690 (Ga. 2007).
In a suit by appellants, a company and the company's president, against a law firm, the trial court properly denied a motion to add a partner as a party defendant under O.C.G.A. §§ 9-11-15(c) and9-11-21 when the appellants claimed that the partner had violated the attorney-client privilege. Appellants did not assert that the partner ever personally represented the appellants or any related entities; accordingly, any attorney-privilege implicated in the fax would be that between the appellants and the law firm, and not between the appellants and the partner individually. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008).
Marketing network properly removed the distributors' action under 28 U.S.C. §§ 1332 and 1441 because the case was not removable until a first amended complaint was filed adding substantially different claims and causing the likely amount in controversy to surpass the jurisdictional amount. Thus, removal was timely under 28 U.S.C. § 1446(b), and the adding of a non-diverse distributor as plaintiff was improper without a court order pursuant to O.C.G.A. §§ 9-11-15 and9-11-21, making the matter completely diverse. Campbell v. Quixtar, Inc., F. Supp. 2d (N.D. Ga. June 13, 2008).
Passenger's motion to amend a complaint to include the driver of a car as a defendant in a suit arising from a traffic accident was properly denied because the passenger was unable to establish the third condition of O.C.G.A. § 9-11-15(c); there was no evidence that the passenger was mistaken about the driver's identity as the negligent operator who caused the collision. At a deposition, the passenger testified that the vehicle in which the passenger was riding was hit by a young woman who had spoken to the passenger at the scene immediately following the collision, and that the passenger had no reason to believe that the owner was driving the car at the time of the accident. Valentino v. Matara, 294 Ga. App. 776, 670 S.E.2d 480 (2008).
Trial court did not abuse the court's discretion by denying a student's motion for leave to amend the complaint to substitute parties under O.C.G.A. § 9-11-21 as the student did not offer an acceptable excuse or justification for failing to name the proper parties that would warrant the conclusion that the trial court ruled inappropriately. Riding v. Ellis, 297 Ga. App. 740, 678 S.E.2d 178 (2009).
Trial court properly dismissed certain parties because no motion was filed pursuant to O.C.G.A. §§ 9-11-15 and9-11-21 to add the parties and no leave of court was granted to add the parties. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).
In a wrongful death action alleging various acts of medical malpractice, the trial court did not err by allowing the plaintiff to substitute the name of one doctor for that of another doctor after the expiration of the statute of limitations because the plaintiff simply corrected a misnomer and asserted the exact same breach of the standard of care under the exact same facts; thus, the second amended complaint met the standard of O.C.G.A. § 9-11-15(c). Hospital Specialists of Georgia, P. C. v. Gray, 339 Ga. App. 564, 794 S.E.2d 411 (2016).
Name of plaintiff or defendant may be corrected by amendment prior to judgment so long, at least, as the name by which the originally designated party is described imports a person, firm, or corporation, even though it is in fact not so. Parker v. Kilgo, 109 Ga. App. 698, 137 S.E.2d 333 (1964) (decided under former Code 1933, § 81-1303).
Leave of court required to add a party.
- Because the claimants never sought leave of court to add a former county commissioner as a party in the commissioner's individual capacity, any unilateral attempt by the claimants to amend the claimants' complaint in this regard through allegations in an appellate brief was ineffective under O.C.G.A. §§ 9-11-15 and9-11-21. Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011).
When the individual members of a city board of education were purportedly parties to an action by amendment and by acknowledgment of service, a trial court's order of substitution was required to make the proper defendant, a city school district, a party substituted in their place; accordingly, the complaining party's attempt to name the school district a defendant by mere amendment was ineffective and the school district was therefore never served as required by statute. Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367 (2002).
Intervention distinguished.
- Intervention involves not a mistake in pleading but the injection of a third person uncontrolled by the parties; should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, the ability to raise these matters would be controlled by O.C.G.A. §§ 9-11-15(c) and 9-11-21. AC Corp. v. Myree, 221 Ga. App. 513, 471 S.E.2d 922 (1996).
Amendment alleging legal status.
- When name of defendant does not import a legal entity, but in fact the defendant is a corporation or partnership, such defect may be cured by amendment alleging the legal status. Mauldin v. Stogner, 75 Ga. App. 663, 44 S.E.2d 274 (1947) (decided under former Code 1933, § 81-1301 et seq.)
Representative capacity of administrator.
- Suit by administrator may be amended by inserting additional words to describe the administrator's representative character. Dorsey v. Georgia R.R. Bank & Trust, 82 Ga. App 237, 60 S.E.2d 828 (1950) (decided under former Code 1933, § 81-1308).
Petition brought against corporation may be amended by adding word "incorporated," so as to state correct name of the corporation. Ernest G. Beaudry, Inc. v. Freenan, 73 Ga. App. 736, 38 S.E.2d 40 (1946) (decided under former Code 1933, § 81-1303).
Naming individual doing business under trade name.
- When suit is brought against defendant in a trade name, the petition is amendable by inserting the name of the individual doing business under that trade name. Mauldin v. Stogner, 75 Ga. App. 663, 44 S.E.2d 274 (1947) (decided under former Code 1933, § 81-1301 et seq).
Grant of motion to correct a misnomer in corporate name inappropriate.
- In a negligence suit brought by a pedestrian against an originally named company in the complaint, the trial court abused the court's discretion by granting the pedestrian's motion to correct a misnomer thereby changing the name of the defendant in the action to a limited partnership as the limited partnership was never served with the complaint, delivery of the summons and complaint to the limited partnership's registered agent was insufficient for service as the originally named company was used in the pleadings and the registered agent did not represent that originally named company, and the name change was not a mere correction but more of a party substitution. Nat'l Office Partners, L.P. v. Stanley, 293 Ga. App. 332, 667 S.E.2d 122 (2008).
Addition of child as plaintiff in wrongful death action.
- Petition for homicide of wife and mother, brought by husband for himself and as next friend for all surviving children except one, is amendable by making omitted child a party plaintiff. Wallace v. Brannen, 56 Ga. App. 856, 193 S.E. 901 (1937) (decided under former Code 1933, § 81-1303).
When original petition for homicide of wife and mother was brought within the period of limitations, failure with such period to make all surviving children parties plaintiff did not bar such action, as an amendment adding an additional child as the plaintiff related to the bringing of the suit. Wallace v. Brannen, 56 Ga. App. 856, 193 S.E. 901 (1937) (decided under former Code 1933, § 81-1303).
Suit brought for and in minor's behalf may be amended to show it is one by the minor by next friend. Crabb v. Stone, 106 Ga. App. 65, 126 S.E.2d 284 (1962) (decided under former Code 1933, § 81-1303).
Substitution of one administrator for another.
- One suing as administrator may amend by substituting another suing as administrator. Citizens & S. Nat'l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527 (1937) (decided under former Code 1933, § 81-1307).
New plaintiff, suing for the use of former plaintiff, may be made by amendment. Sybilla v. Connally, 66 Ga. App. 678, 18 S.E.2d 783 (1942) (decided under former Code 1933, § 81-1307).
Amendments After Verdicts or Judgment
No right to amend after judgment.
- While right to amend is very broad, it may not be exercised after case has been tried and judgment rendered therein which has not been set aside or vacated. Felker v. Johnson, 56 Ga. App 659, 193 S.E. 472 (1937) (decided under former Code 1933, § 81-1301).
This section does not allow amendment after judgment, has been rendered unless the judgment has been reversed or set aside, has been rendered. Christopher v. McGehee, 124 Ga. App. 310, 183 S.E.2d 624, aff'd, 228 Ga. 466, 186 S.E.2d 97 (1971).
While the right to amend is very broad, the right may not be exercised after the case has been tried and judgment rendered therein. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).
Once judgment on the pleadings was entered in favor of the owner of a car on the personal injury claims of a driver injured in a collision that involved the owner's car while the car was being driven by another person, the driver could not amend the complaint to add additional claims against the owner. Fredrick v. Hinkle, 297 Ga. App. 101, 676 S.E.2d 415 (2009).
Trial court did not abuse the court's discretion in dismissing a parent's third amended petition for mandamus, which was filed after judgment had been entered, because the plaintiff did not obtain leave of the court to amend the complaint, and the defendant expressly opposed all post-judgment filings. R.A.F. v. Robinson, 286 Ga. 644, 690 S.E.2d 372 (2010).
Too late to amend after verdict or directed verdict.
- Once issues are narrowed for trial, the complaint stands only upon those facts adduced at trial by the plaintiff, and after the verdict is returned or a motion for directed verdict is sustained, it is too late to amend, even pending remittitur. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974).
After affirmance by appellate court.
- When the entire tax case was tried on the case's merits by the superior court, affirmance of the court's judgment by the Court of Appeals on the merits, without condition of direction, left the trial court without jurisdiction to pass on amendments tendered after receipt of the remittitur but before the judgment of the higher court was by formal order made the judgment of the lower court. Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942) (decided under former Code 1933, Ch. 13, T. 81).
Amended answer stricken after ruling by appellate court.
- As an appellate court's prior ruling was determinative of all claims, the trial court did not err in striking the appellants' amended answer raising, for the first time, a statute of limitations defense. Falanga v. Kirschner & Venker, P.C., 298 Ga. App. 672, 680 S.E.2d 419 (2009).
Amendments did not alter who prevailing party was in litigation.
- In a wrongful death and breach of contract action wherein the plaintiff did not prevail, the trial court erred by awarding the plaintiff attorney fees under an aircraft purchase agreement (APA) because the defendant was the prevailing party and under the fee-shifting clause of the agreement, the prevailing party was entitled to an award of attorney fees and plaintiff's amendments to the complaint to remove references relying on the APA for liability did not alter that the APA governed the parties' transaction. Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 740 S.E.2d 439 (2013).
Amendments to Conform to Evidence
Pleadings may in effect be amended by evidence adduced upon trial. Juneau v. Juneau, 98 Ga. App. 330, 105 S.E.2d 913 (1958) (decided under former Code 1933, § 81-1301).
Parties may, by express consent or by introduction of evidence without objection, amend pleadings at will. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978); Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980).
In an action for fraud, although claims of breach of contract and forgery were not expressly averred in the complaint, when evidence as to those issues was introduced at trial without objection on grounds that it was beyond the scope of the pleadings, the pleadings were amended implicitly pursuant to subsection (b) of O.C.G.A. § 9-11-15. Rockdale Body Shop, Inc. v. Thompson, 222 Ga. App. 821, 476 S.E.2d 22 (1996).
Issue of actual damages, having been litigated by the implied consent of the parties, was not foreclosed because of its absence from the complaint. Conner v. Conner, 269 Ga. 112, 499 S.E.2d 54 (1998).
Application of subsection (b).
- Subsection (b) of O.C.G.A. § 9-11-15 applies when issues not raised by the pleadings are tried by express or implied consent of the parties. Borenstein v. Blumenfeld, 250 Ga. 606, 299 S.E.2d 727 (1983).
Guardian of the property testified that the guardian was in court to explain to the court what the documentation in the court file showed had occurred, to explain further with some facts that were not in the file, and to respond to the answer of the guardian ad litem; the guardian testified about the grounds for the guardian's revocation, later considered by the court in the court's revocation order, and it followed that the guardian expressly or by implication consented to the consideration of those grounds in the order revoking the guardian's letters. In re Longino, 281 Ga. App. 599, 636 S.E.2d 683 (2006), cert. denied, 2007 Ga. LEXIS 92 (Ga. 2007).
Beneficiaries of a will sued the decedent's grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent's estate. The grandchild's claim that fraud had not been pled or proven was unavailing as the trial court amended the pleadings under O.C.G.A. § 9-11-15(b) to conform to the evidence and charged the jury on fraud; and the jury found by special verdict that the grandchild, with intent to commit fraud, converted the stock. Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008).
Subsection (b) is not permissive in terms: the subsection provides that issues tried by express or implied consent shall be treated as if raised by the pleadings. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).
Construction of
§ 9-11-16 in light of subsection (b) of this section. - Ga. L. 1968, p. 1104, § 5 (see now O.C.G.A. § 9-11-16), relating to pretrial procedure, must always be considered in light of the mandatory provisions of subsection (b) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15), and the test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend and offer evidence or was misled. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980).
Subsection (b) does not overlap with § 9-11-60. - Subsection (b) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15) concerns only amendments to conform to the evidence, and in no respect overlaps with Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60(d)), relating to relief from judgments. Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976).
Subsection (b) is applicable to defenses as well as to claims, and to the extent to which the subsection applies, the subsection operates as an exception to the rule that defenses not pled are waived. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).
Evidence supporting affirmative defense.
- Subsection (b) of O.C.G.A. § 9-11-15 provides that, at trial, the pleadings are deemed automatically amended to conform to the evidence that has been admitted without objection; therefore, an affirmative defense may be asserted for the first time at trial. Brackett v. Cartwright, 231 Ga. App. 536, 499 S.E.2d 905 (1998).
"Prejudice," under subsection (b), means undue difficulty in prosecuting a law suit, as a result of a change of tactics or theories on the part of the other party. Munsford Co. v. Klingenberg, 138 Ga. App. 791, 227 S.E.2d 507 (1976).
Evidence received without objection amends pleadings by operation of law. McLendon Elec. Co. v. McDonough Constr. Co., 149 Ga. App. 115, 253 S.E.2d 772 (1979); Sambo's of Ga., Inc. v. First Am. Nat'l Bank, 152 Ga. App. 899, 264 S.E.2d 330 (1980).
Trial court did not err by granting the former husband reimbursement of pension benefits despite the former husband's failure to request that relief in the pleadings; pursuant to O.C.G.A. § 9-11-15(b), the issue was treated as if the issue had been raised because the former wife permitted the issue to be litigated without objection. Howington v. Howington, 281 Ga. 242, 637 S.E.2d 389 (2006).
Formal pleading of defenses unnecessary when tried by consent.
- Fact that a defense, even an affirmative defense, has not been formally pled is immaterial if the issue was tried by express or implied consent; lack of an amendment does not affect the judgment in any way. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).
In a suit on a promissory note, the trial court did not err by considering the affirmative defense of failure of consideration, which the maker had not pled, since the payee failed to object when the maker's counsel argued failure of consideration in the maker's opening statement and in the maker's motion for directed verdict; this issue was thus tried by the implied consent of the parties under O.C.G.A. § 9-11-15(b). Drake v. Wallace, 259 Ga. App. 111, 576 S.E.2d 87 (2003).
Issues tried by consent are treated as if pled.
- If an issue not raised by the pleadings is tried by express or implied consent, it is to be treated as if made by the pleadings. Iowa Sheet Metal Contractors v. Jenkins, 119 Ga. App. 162, 166 S.E.2d 599 (1969).
Construction of pleading to uphold verdict.
- Absent amendment, when no objection is interposed, pleading will be considered to have been amended so as to uphold the verdict. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972).
Counterclaim not automatically amended to conform to evidence.
- Provisions of O.C.G.A. § 9-11-15 will not operate to amend automatically a counterclaim to conform to evidence introduced in a deposition taken during the discovery process and prior to trial. Feely v. First Am. Bank, 206 Ga. App. 53, 424 S.E.2d 345 (1992).
Pleadings not amended by evidence absent litigation of issue and opportunity to defend.
- Provisions of the Civil Practice Act (see nw O.C.G.A. Ch. 11, T. 9) respecting amendment of pleadings by introduction of evidence and grant of relief in accordance with such evidence have no application when propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief. Cross v. Cross, 230 Ga. 91, 195 S.E.2d 439 (1973).
Withdrawal of admission by amendment of pleadings.
- In an action against a negligent driver's father, the father's initial admission that the vehicle was a family purpose vehicle was made regarding a legal opinion, i.e., agency under the family purpose doctrine, and, therefore, it could not be an admission in judicio or an admission against interest because it was a legal opinion or conclusion that had been withdrawn by amendment from the pleadings. Wahnschaff v. Erdman, 232 Ga. 77, 502 S.E.2d 246 (1998).
It was incumbent upon the plaintiff to put the defendant on notice prior to the close of evidence of the plaintiff's contention that an additional issue was being placed before the jury for resolution. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975).
Whether issue has been tried by implied consent is a question of fact, and a decision on this question is generally considered to be within the sound discretion of the trial court. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975); Andean Motor Co. v. Mulkey, 251 Ga. 32, 302 S.E.2d 550 (1983).
Implied consent usually is found when one party raises an issue material to the other party's case, or when evidence is introduced without objection. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978); Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980); All Risk Ins. Agency, Inc. v. Southern Bell Tel. & Tel. Co., 182 Ga. App. 190, 355 S.E.2d 465 (1987); McCollum v. Doe, 190 Ga. App. 444, 379 S.E.2d 233 (1989); Mortgage Sav. Co. v. KKFB Inv. Co., 196 Ga. App. 283, 396 S.E.2d 16 (1990); Bowers v. Howell, 203 Ga. App. 636, 417 S.E.2d 392 (1992).
Consent not implied absent indication of new issue.
- When evidence claimed to show that an issue was tried by consent was relevant to an issue already in the case as well as to the issue that was the subject matter of the amendment, and there was no indication at trial that the party who introduced the evidence was seeking to raise a new issue, pleadings would not be deemed amended under subsection (b) of this section. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975).
When the evidence offered is relevant to an issue before the court, consent to an amendment of the pleadings will not be implied absent a clear indication that the party introducing the evidence was attempting to raise a new issue. Southern Disct. Co. v. Kirkland, 181 Ga. App. 263, 351 S.E.2d 685 (1986).
When the defendant argued that the pleadings should be amended to set forth failure of consideration and breach of warranty issues, and insisted that the issues were tried with implied consent, but did not argue that the pleadings should be amended in the interest of justice even though the plaintiff objected to the failure of consideration and breach of warranty evidence, the defendant would not be heard on appeal to argue that the trial court should have granted the written motion to amend the pleadings in spite of the plaintiff 's objection to the failure of consideration and breach of warranty evidence. Avery v. Chrysler Credit Corp., 194 Ga. App. 682, 391 S.E.2d 410, cert. denied, 194 Ga. App. 911, 391 S.E.2d 410 (1990).
Trial court did not err by prohibiting a former insurance agent from presenting to the jury a claim of slander per se with respect to statements made by a competing insurance agent in front of the former insurance agent's home and before the former insurance agent's spouse as the complaint did not claim as a separate basis for recovery the statements made at the house, rather, it only addressed statements purportedly made to customers. Thus, the trial court was authorized to find that the issue was not tried by the implied consent of the parties since the competing insurance agent had no notice of such allegations and, therefore, the trial court did not abuse the court's discretion by disallowing the statements from being presented to the jury as a separate claim of slander per se. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. 2008).
If adverse party objects, new claims should not be considered.
- When defendants made a clear objection to admission of evidence of additional claims, not raised in the pleadings, such claims were not tried with the defendants express or implied consent, and absent an amendment to the pleadings, the court was not authorized to admit evidence or enter judgment for claims based on such evidence. Burger King Corp. v. Garrick, 149 Ga. App. 186, 253 S.E.2d 852 (1979); Bland v. Graham, 249 Ga. App. 856, 549 S.E.2d 809 (2001).
Award of alimony to a wife was reversed because she never asserted a claim for alimony in her pleadings, but sought an annulment, the husband had no notice that alimony would be an issue, and he objected to litigating the issue when the issue was raised; O.C.G.A. § 9-11-15(b) did not apply because the husband did not consent to litigating the issue, but clearly objected when the issue was raised. Sedehi v. Chamberlin, 344 Ga. App. 512, 811 S.E.2d 24 (2018), cert. denied, No. S18C0868, 2018 Ga. LEXIS 484 (Ga. 2018).
Consent not implied by adverse party's absence from trial.
- Consent to introduce evidence relating to a party and cause of action not within the framework of the lawsuit cannot be implied from the absence of the other party on the trial of the case. Burgess v. Nabers, 122 Ga. App. 445, 177 S.E.2d 266 (1970).
Amendment permitted absent prejudice to objecting party.
- Defendant was properly permitted, over the plaintiff's repeated objections, to introduce evidence of certain expenses not specifically included in the defendant's counterclaim when the plaintiff did not satisfy the trial court that admission of the evidence would prejudice the plaintiff. Kim v. McCullom, 222 Ga. App. 439, 474 S.E.2d 654 (1996).
When an issue is raised by evidence, charge on subject is authorized, notwithstanding failure of the pleadings to present such issue. Sligh v. Western Elec. Co., 152 Ga. App. 80, 262 S.E.2d 245 (1979).
Amendments may be filed to conform to the evidence, even though the amendments technically change the theory of the cause of action. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972).
Pleading may be amended after judgment only insofar as to make the pleading conform to the evidence. Buffington v. Nalley Disct. Co., 117 Ga. App. 820, 162 S.E.2d 212 (1968).
Plaintiff not required to amend in every case.
- Fact that this section contains liberal provisions making it possible to amend pleadings during the course of trial does not require the plaintiff to so amend in every case in which the plaintiff might do so. Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 213 S.E.2d 909 (1975).
Failure to amend does not affect result of trial.
- While amendments to conform to the evidence are authorized, failure to amend does not affect result of the trial of an issue not made specifically by the pleadings. Iowa Sheet Metal Contractors v. Jenkins, 119 Ga. App. 162, 166 S.E.2d 599 (1969).
Verdict and judgment supported by evidence will stand.
- Notwithstanding mandate of subsection (b) of this section to amend the pleadings to conform to the evidence, if the verdict and judgment are supported by evidence received without objection, the verdict and judgment will stand even without amendment. Jolly v. Jolly, 137 Ga. App. 625, 224 S.E.2d 807 (1976).
Amendment jeopardizing or overthrowing judgment not authorized.
- Party cannot shift ground and try a new theory of recovery through a proposed amendment, effect of which would be not to conform the pleadings to a judgment the party had won, but to jeopardize and perhaps overthrow a judgment the party has lost; the dividing line is drawn between this use of amendment and those uses aimed at conformity. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974).
Irrelevant testimony need not be admitted.
- While the trial court is permitted to admit evidence by allowing pleadings to be amended, and may grant a continuance to enable the objecting party an opportunity to prepare a defense, this section does not require the court to admit testimony that is irrelevant and outside the pleadings. Madaris v. Madaris, 224 Ga. 577, 163 S.E.2d 745 (1968).
Evidence of failure of conditions precedent.
- When, at trial, specific evidence showing that all conditions precedent had not occurred was introduced by the defendant without objection, this evidence amended the pleadings by operation of law. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).
Divorce petition giving no indication that spouse is seeking alimony cannot be amended by introduction of evidence if the other spouse has filed no pleadings and does not litigate the issues at the trial. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).
When complaint for divorce did not affirmatively allege residence, so as to show legal jurisdiction of the court over the subject matter, such issue may be raised by the evidence, and if so raised is tantamount to an amendment of the pleadings to that effect. Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978).
Recovery on quantum meruit in contract action.
- Rule that one may not recover on quantum meruit, if evidence so warrants, in a contract action no longer obtains, under subsection (b) of this section. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972); Lake Lanier Cottage Owners Ass'n v. BMS Enters., Inc., 194 Ga. App. 858, 392 S.E.2d 312 (1990).
Probate proceedings.
- Despite an administrator's claim that the probate court's order did not conform to the issues pled, and specifically, that the court erred in resolving conflicting claims to alleged property of the estate and ordering reimbursement: (1) the probate court did not resolve conflicting claims to alleged property of the estate; (2) the administrator impliedly consented to adjudicating the issues; and (3) as the question of the legitimacy of the transactions was properly before the court, the court did not err in addressing the issue or in granting the relief necessary to protect the estate. Ray v. Nat'l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006).
Grant of equitable relief not prayed for.
- Under Ga. L. 1966, p. 609, § 54 and Ga. L. 1968, p. 1104, § 4 (see now O.C.G.A §§ 9-11-15 and9-11-54), rule that equitable relief is limited to that alleged and prayed for is no longer applicable. DeRose v. Holcomb, 226 Ga. 289, 174 S.E.2d 410 (1970).
Under Ga. L. 1966, p. 609, § 54 and Ga. L. 1968 p. 1104, § 4 (see now O.C.G.A §§ 9-11-15 and9-11-54), when the issue is raised, the trial court is authorized to grant equitable relief, though not specifically prayed for. Logan v. Nunnelly, 128 Ga. App. 43, 195 S.E.2d 659 (1973).
In absence of transcript the appellate court must assume that evidence amended pleadings under O.C.G.A. § 9-11-15 and authorized the verdict rendered. Hopkins v. Hopkins, 168 Ga. App. 144, 308 S.E.2d 426 (1983).
Although a prospective property purchaser initially asserted a claim for specific performance based only on a right of first refusal in a contract between the purchaser and the property owner, for which relief was denied, and the purchaser thereafter purportedly amended the complaint to add a claim for the existence of a separate contract for the sale of the property at issue, because the purchaser did not include a transcript from the hearing after the amendment, wherein the trial court indicated that the court's prior order was a final judgment on the merits, there was nothing to support the purchaser's claim on appeal that the additional contract claim was raised at that hearing by consent of the parties, pursuant to O.C.G.A. § 9-11-15(b); the appellate court had to assume the trial court's judgment was correct and affirm, absent the transcript. Bay Meadow Corp. v. Hart, 276 Ga. App. 133, 622 S.E.2d 478 (2005).
Father failed to show reversible error because, although the father argued that the trial court's order improperly modified the father's custodial rights since there were no pleadings or motions pending in the action that would allow modification of the custodial rights, without a transcript, the court of appeals had no information about how the issue was treated at trial, and the issue could have been tried by express or implied consent of the parties. Johnson v. Ware, 313 Ga. App. 774, 723 S.E.2d 18 (2012).
Pleadings are deemed automatically amended to conform to evidence presented at trial. Gresham v. White Repair & Contracting Co., 158 Ga. App. 235, 279 S.E.2d 528 (1981).
Pleadings amended to include claim for engineer services.
- Even though the defendant's claim for engineer services or cost thereof was not included in the defendant's counterclaim, since the evidence of such claim was received without objection, the defendant's counterclaim was amended by operation of law. Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708 (1981).
When a landlord raised the issue of compliance with lease terms, though such issue was not raised in the pleadings, the landlord could not complain when the defendant lessee sought to challenge the landlord's position of compliance. May v. Poole, 174 Ga. App. 224, 329 S.E.2d 561 (1985).
Trial court did not err in failing to submit this issue to the jury as the issue of express warranty was not tried by implied consent; the parties viewed the service contract evidence as relevant to whether the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., which formed the basis of the buyer's implied warranty claim, applied to the case and the evidence, therefore, related to an issue originally raised in the complaint but the record contained no suggestion that the buyer introduced the service contract evidence as part of an express warranty claim. Dildine v. Town & Country Truck Sales, Inc., 259 Ga. App. 732, 577 S.E.2d 882 (2003).
Defaulting defendant, not put on notice, did not "consent" to punitive damages.
- Defendant, who was in default and had been put on notice that the plaintiff considered the defendant's conduct in repairing the plaintiff's roof to be merely negligent, could not be held to have consented to an amendment of the pleadings to support an award of punitive damages. Ticor Constr. Co. v. Brown, 255 Ga. 547, 340 S.E.2d 923 (1986).
Amendment after commencement of trial.
- Trial court did not err by granting a builder leave to file an amended complaint that included a claim for attorney fees after the commencement of the trial because homeowners could not show that the homeowners were prejudiced by the filing of the amended complaint of which the homeowners had prior notice and to which the homeowners had already consented; while the builder was required to obtain leave of court because the pleading had not been filed prior to the commencement of trial, under O.C.G.A. § 9-11-15(a), leave was to be freely given when justice so required. Harris v. Tutt, 306 Ga. App. 377, 702 S.E.2d 707 (2010).
Post-judgment amendment to add a claim for attorney fees would have been proper if the issue of such fees had been tried by express or implied consent of the parties; when this was not the case, the court erred in admitting evidence regarding attorney fees. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985).
Relation Back of Amendments
1. In General
Subsection (c) duplicates federal rule.
- Subsection (c) of this section, as amended in 1972, is an exact duplicate of Fed. R. Civ. P. 15(c), as amended in 1966. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Scope of subsection (c).
- Scope of subsection (c) of this section is not limited only to cases involving statutes of limitation. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).
Narrow, technical reading of subsection (c) would defeat purposes for which it was designed. Rich's, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975); Samples v. Barnes Group, Inc., 175 Ga. App. 253, 333 S.E.2d 147 (1985).
"Original pleading" as used in subsection (c) of O.C.G.A. § 9-11-15 means the pleading being amended. Speer, Inc. v. Manis, 164 Ga. App. 460, 297 S.E.2d 374 (1982).
Aim of relation back rule is to ameliorate impact of statute of limitation. See Rich's, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975); Maelstrom Properties, Inc. v. Holden, 158 Ga. App. 345, 280 S.E.2d 383 (1981); Suwannee Swifty Stores, Inc. v. NationsBank, N.A., 245 Ga. App. 198, 536 S.E.2d 299 (2000).
Effect on running of limitations.
- When the requirements of subsection (c) of O.C.G.A. § 9-11-15 are met, even the running of the statute of limitation does not control. Of course, amendment after judgment is not permitted. Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 398 S.E.2d 725 (1990).
When the defendant admitted the defendant was a sister corporation of the original defendant in an action filed on the last day of the limitation period, and that the defendant knew or should have known the action would have been brought against the defendant, the valid service on the original defendant, after the expiration of the statute of limitations, was timely notice of the action. Tanner's Rome, Inc. v. Ingram, 236 Ga. App. 275, 511 S.E.2d 617 (1999).
Motor carrier's motion for permission to file a permissive counterclaim against a shipping broker in a federal action did not satisfy the 18-month statute of limitations in 49 U.S.C. § 14705(a) for bringing a state action against the broker as the motion for leave to file the counterclaim had been denied in the federal action and the notice required under O.C.G.A. § 9-11-15(c) was notice of the institution of the action (i.e., notice of the lawsuit itself) and not merely notice of the incidents giving rise to such action. Exel Transp. Servs. v. Sigma Vita, Inc., 288 Ga. App. 527, 654 S.E.2d 665 (2007).
Trial court did not err in denying a doctor's motion to dismiss an administrator's professional negligence claim because the new professional negligence claim related back to the date of the original complaint and was not barred by the two-year statute of limitation as both the original complaint and the amended complaint set forth allegations based upon the decedent's surgery, emergency room visit, and discharge relating to the care received from the doctor following the laparoscopic gallbladder surgery the doctor performed. Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52 (2012).
Primary question for consideration under subsection (c) of this section is whether allowance of the plaintiff's proposed amendment will work an injustice upon the defendant, and timeliness of the motion for leave to amend is one of the elements to be considered. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Requirement of substantial similarity.
- Employee could not use the amendment provisions of O.C.G.A. § 9-11-15(c) to add claims for unjust enrichment and quantum meruit to a renewal action against the employer's estate because the claims were not substantially similar to the claims in the original action. Burns v. Dees, 252 Ga. App. 598, 557 S.E.2d 32 (2001).
Sexual assault, battery, and loss of consortium claims which were filed as part of the patient and husband's renewed complaint were not "substantially similar" to claims included in their original complaint and since those actions were otherwise barred because the applicable statute of limitations had ran regarding those claims, the trial court should have granted the psychologist's and clinic's motion for judgment on the pleadings as to those claims. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003).
Burden is on the party seeking amendment to show lack of unexcusable delay or laches. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Untimeliness alone not sufficient to bar amendment.
- Objection that motion to amend under subsection (c) of this section was not timely is not sufficient alone to bar the amendment. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Amendment to complaint, increasing damages sought, properly relates back to date of original pleading. Pardue Constr. Co. v. Toccoa, 147 Ga. App. 132, 248 S.E.2d 199 (1978).
Although an original complaint sought only money damages, an amendment seeking equitable relief against the property in question related back so as to provide justification for defendants' filing and pursuing lis pendens. Backman v. Packwood Indus., Inc., 227 Ga. App. 416, 489 S.E.2d 135 (1997).
Amendment seeking jury trial.
- When amendment to original answer, asking for a jury trial, was filed before entry of a pretrial order, the amendment would relate back to the original date of filing. Marler v. C & S Bank, 239 Ga. 342, 236 S.E.2d 590 (1977).
Assertion of new cause of action.
- Strict rule that amendment asserting a new cause of action will not relate back to the time of filing of the original complaint is no longer applicable, unless the causes of action are not only different but arise out of wholly different facts. Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14, 217 S.E.2d 358 (1975).
Relation back doctrine did not apply to an employee's second amended complaint filed against an employer's shareholder because the employee personally characterized the action to enforce a judgment as wholly separate and distinct from the claims asserted against the employer; further, the court found unpersuasive the argument that the employee was unaware of the shareholder's identity as the employer's alter ego and that the employee mistakenly believed that the employer and the shareholder were separate entities and that the shareholder was protected by the corporate form. Pazur v. Belcher, 272 Ga. App. 456, 612 S.E.2d 481 (2004).
Because there was no pretrial order in the case, and the plaintiff filed an amended complaint raising claims of unjust enrichment and quantum meruit before the trial court ruled on the defendant's motion for a de novo review of the state court's denial of the plaintiff's summary judgment motion, under O.C.G.A. § 9-11-15(a), the plaintiff had the right to amend the plaintiff's complaint to add the additional claims until the trial court ruled on the defendant's motion. Cook Pecan Company, Inc. v. McDaniel, 337 Ga. App. 186, 786 S.E.2d 852 (2016).
Claim of imputed simple negligence against a hospital in the second amended complaint (SAC) related back to the date of the original complaint, and the new claim was not barred by the applicable two-year statute of limitation because the facts alleged in the SAC occurred at the same time as certain facts in the original complaint, near the end of the three-and-a-half hour time frame of the treatment preceding the plaintiff's alleged injury, the facts occurred at the exact same location, and involved the same general subject matter - the negligent treatment of the plaintiff's dangerously unstable spine; and the allegations were part of the same events that led up to the same ultimate injury for which the plaintiff was seeking damages. Tenet HealthSystem GB, Inc. v. Thomas, 304 Ga. 86, 816 S.E.2d 627 (2018).
Amendment not asserting new cause of action.
- When plaintiff's original complaint, based on 42 U.S.C. § 1983 violations, was filed within two years after the injury, and the plaintiff asserted a First Amendment claim in an amendment, even though the First Amendment expression arose out of the plaintiff's prior activities, the plaintiff's claim for violation of such right arose out of defendant's acts which were the basis of the § 1983 claim and related back to the date of the original complaint. Blue Ridge Mt. Fisheries, Inc. v. Department of Natural Resources, 217 Ga. App. 89, 456 S.E.2d 651 (1995).
Counts III and IV of the amended complaint related back to the original complaint, filed within the statutory period, when the courts merely specified facts underlying the indebtedness claimed in the original complaint. Herndon v. Heard, 262 Ga. App. 334, 585 S.E.2d 637 (2003).
Trial court erred in dismissing Count 10 of the plaintiff's second amended complaint alleging simple negligence against the hospital as the allegations related back to the date of the original filing, and were not time barred, because the claims in Count 10 of the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original complaint; and because both the original and amended complaints set out allegations about the improper removal of the cervical spine collar by a hospital employee as the plaintiff set out allegations in the plaintiff's complaint that were based upon the conduct of the hospital and others that related to the plaintiff's visit to the emergency room, treatment there, and discharge. Thomas v. Tenet Healthsystem GB, Inc., 340 Ga. App. 70, 796 S.E.2d 301 (2017), aff'd, 304 Ga. 86, 816 S.E.2d 627 (2018).
Amendment validating service of process.
- Amendment may relate back to the original complaint, thereby validating service of process. Leniston v. Bonfiglio, 138 Ga. App 151, 226 S.E.2d 1 (1976). For comment, see 28 Mercer L. Rev. 559 (1977).
Allegation of conditions precedent.
- Rule as to relation back applies to allegation of facts which are conditions precedent to existence of a right of action. Middlebrooks v. Daniels, 129 Ga. App. 790, 201 S.E.2d 338 (1973).
Statute of limitation was not tolled while a motion to add the defendants was under advisement by the court; thus, subsection (c) of O.C.G.A. § 9-11-15 applied to determine whether the action was timely commenced against the additional defendants. Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 436 S.E.2d 63 (1993).
Amendment alleging separate publication of same libelous statement alleged in original complaint does not state a claim arising out of the conduct, transaction, or occurrence set forth in the original pleading. Cole v. Atlanta Gas Light Co., 144 Ga. App 575, 241 S.E.2d 462 (1978).
Failure to file exceptions to auditor's report within the statutory time period of former Code 1933, § 10-301 (see now O.C.G.A. § 9-7-14) cannot be cured by later amendments made after expiration of such time period as application of subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15) under these circumstances would frustrate the purpose of the limitation period and allow a party to do indirectly what cannot be done directly. Wise, Simpson, Aiken & Assoc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 247 S.E.2d 479 (1978).
Amendment held not to relate back.
- Later amendment cannot relate back under O.C.G.A. § 9-11-15 so as to cure a defect and affect vesting of title as of date original declaration petition was filed. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).
Count V of the amended complaint did not relate back to the original complaint since the count set forth the new claim of theft by deception, which had not been previously alleged in the almost six years that the suit had been pending. Herndon v. Heard, 262 Ga. App. 334, 585 S.E.2d 637 (2003).
Renewal action.
- Amendment to a complaint in a renewal action relates back to the date of the complaint in the renewal action and not the date of the original complaint which was dismissed. Speer, Inc. v. Manis, 164 Ga. App. 460, 297 S.E.2d 374 (1982).
Action to enforce lien.
- Subsection (c) of O.C.G.A. § 9-11-15, which permits amendments to relate back to the time of the original pleading, applies to actions to foreclose liens. Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161, 366 S.E.2d 292 (1988).
Action against former land manager.
- Claim by a partnership against its former managing partner related back because the claim arose from the same conduct on which the original action was based. Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 648 S.E.2d 764 (2007).
Assault and battery claim added to medical malpractice complaint was not time barred since it could not be said that the alleged malpractice and alleged unauthorized touching involved in the operation arose from different facts and, therefore, the amendment related back to the original complaint. Smith v. Wilfong, 218 Ga. App. 503, 462 S.E.2d 163 (1995).
Federal civil rights claim grounded on allegations of a malicious conspiracy between the defendants and the judge who issued a restraining order, brought three years after the accrual of the cause of action and after the original claim for breach of contract, tortious interference with contractual rights, and indemnity did not relate back and was barred by the statute of limitation. Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984).
Amendment to complaint changing the date of the alleged injury properly relates back to the date of the original pleading when change apparently was necessary due to a typographical error in the original complaint. Wilson v. Commercial Cold Storage, Inc., 179 Ga. App. 260, 346 S.E.2d 6 (1986).
Intervenor's claim for pain and suffering was a claim arising out of the conduct, transaction, or occurrence set forth in the original complaint and could be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes. P. F. Moon & Co. v. Payne, 256 Ga. App. 191, 568 S.E.2d 113 (2002).
Defect in answer cured.
- Because a corporation answered a complaint through a nonattorney corporate principal, the defect in the answer was cured by the filing of an answer by a licensed attorney, and the properly filed answer related back to the date of the original answer, pursuant to O.C.G.A. § 9-11-15(c); accordingly, it was error to enter a default judgment against the corporation pursuant to O.C.G.A. § 9-11-55. Rainier Holdings, Inc. v. Tatum, 275 Ga. App. 878, 622 S.E.2d 86 (2005).
In a tort action, venue over a defendant was assessed based upon the facts existing at the time the action was originally filed because the defendant was added as a party to a lawsuit under the relation back provision of O.C.G.A. § 9-11-15(c). Thus, venue under O.C.G.A. § 14-2-510 was proper based on the defendant's having had an office and transacted business in the county at the time the suit was originally filed. HD Supply, Inc. v. Garger, 299 Ga. App. 751, 683 S.E.2d 671 (2009).
Amendment related back to answer.
- Seller's answer was timely and legally sufficient because the seller, which was a corporation, filed an amended answer by and through an attorney of record before the entry of a pre-trial order. Therefore, the amended answer related back to the filing of the seller's answer pursuant to O.C.G.A. § 9-11-15(c). Murray v. DeKalb Farmers Mkt., Inc., 305 Ga. App. 523, 699 S.E.2d 842 (2010).
Implicit approval to amendment to complaint's requested amount of damages.
- Although a condominium association's own documents, including an account ledger, the complaint, and a motion for summary judgment, all showed different amounts due to the association from an owner, there was no issue of fact. The trial court's grant of the association's motion for summary judgment seeking damages which accrued after the date the association's complaint was filed implicitly approved an amendment to the complaint under O.C.G.A. § 9-11-15(b). Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424, 721 S.E.2d 631 (2011).
2. Amendments Changing or Adding Parties
Relation back occurs both as to plaintiff and defendant under subsection (c) of this section when new and old parties have such identity of interest that relation back is not prejudicial, and when new cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, provided other requirements are also met. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Relation back permitted to substitute sheriff as party instead of county.
- In a wrongful death action by parents arising out of a deputy sheriff's high-speed chase, the county was not vicariously liable for the deputy's act because it did not employ the deputy; however, the parents should have been permitted to substitute the sheriff, in the sheriff's official capacity, as the proper party defendant under O.C.G.A. § 9-11-15(c). Cannon v. Oconee County, 353 Ga. App. 296, 835 S.E.2d 753 (2019).
Examples of proper changes in parties contemplated and permitted by subsection (c) of this section are: substituting a party for a "John Doe" defendant who has been identified and served; changing capacity of a party plaintiff; changing a misnomer; changing named corporate defendant to reflect true corporation; and adding other survivors of decedent as parties plaintiff. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).
Added parties need not be "necessary parties".
- There is nothing in language of subsection (c) of this section which requires that in order to add parties whose claims relate back to filing of the original complaint added parties must be necessary parties. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Proper standard must be applied.
- Trial court erred by denying the plaintiff's motions to amend the complaint as the motions related to the adding of parties because the court failed to consider the proper standard for the addition of parties; the appellate court recognized the confusion caused by the plaintiff's filing of a motion for leave to add additional parties at the same time the plaintiff filed amended complaints to add new causes of action against the original defendants. Benedek v. Bd. of Regents of the Univ. Sys. of Ga., 332 Ga. App. 573, 774 S.E.2d 150 (2015).
Addition of strangers to suit not contemplated.
- Addition of parties who are altogether strangers to the original suit, insofar as notice and knowledge thereof, was not intended to be encompassed within the word "changing." A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).
Addition of totally new parties by amendment does not relate back to filing of original suit for purposes of determining whether a prior pending suit exists. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).
Subsection (c) of O.C.G.A. § 9-11-15 negates any idea that the provisions can be used to add parties who are altogether strangers to the action or that, by "relating back" that addition, the plaintiff can escape an expired limitation. Beaver v. Steinichen, 182 Ga. App. 303, 355 S.E.2d 698 (1987).
Complaint amended to add additional plaintiff relates back to the date of the original pleading if the defendant was given notice of the additional plaintiff's claim and if that claim arose out of the same conduct, transaction, or occurrence set forth in the original pleading. Downs v. Jones, 140 Ga. App. 752, 231 S.E.2d 816 (1976), vacated on other grounds, 142 Ga. App. 316, 235 S.E.2d 760 (1977).
Substitution of proper plaintiff when suit brought by beneficiary.
- When suit is brought by one who has no legal right to maintain the suit, but who has a beneficial interest in the subject matter of the action, substitution of a proper plaintiff will relate back to the time of filing of the original action. Atlanta Newspapers, Inc. v. Shaw, 123 Ga. App. 848, 182 S.E.2d 683 (1971).
Meaning of "changing party against whom claim is asserted."
- Because from the viewpoint of the party sought to be added belatedly, it makes no difference whether the party was originally designated as John Doe and not served or originally neither named nor served because another person was erroneously thought to be the correct defendant, both situations are encompassed by reference in subsection (c) of this section to "changing the party against whom a claim is asserted." Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974).
Requirements for relation back of amendment changing defendant.
- Amendment to a complaint changing the party defendant relates back to the date of the original pleadings and prevents bar of the statute of limitation if the following requirements are met: (1) suit was commenced within the lawful period; (2) the claim arose out of the conduct, transaction, or occurrence in the original complaint; (3) the new defendant received notice of original filing of the action within the period provided by law for commencing the action against the defendant; (4) notice is such that the defendant will not be prejudiced in maintaining the defendant's defense on the merits; and (5) the new defendant knew or should have known that, but for a mistake concerning identity of the proper party, the action would have been brought against the defendant. Rich's, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975).
Subsection (c) of O.C.G.A. § 9-11-15 permits an amendment changing the parties to relate back to the date of filing the original petition provided that the amendment arises out of the same facts as the original complaint, that the new defendant has sufficient notice of the action, and that the defendant knew or should have known that, but for a mistake concerning the defendant's identity as a proper party, the action would have been brought against the defendant. Trillium Nursing Home, Inc. v. Thebaut, 189 Ga. App. 411, 375 S.E.2d 888 (1988).
Amendment to add a new party defendant was authorized when the amendment adding the new defendant arose out of the same facts as the original complaint, the new defendant had sufficient notice of the action, and the new defendant knew or should have known that, but for a mistake concerning the defendant's identity as a proper party, the action would have been brought against the defendant. Robinson v. Piggly Wiggly of Calhoun, Inc., 193 Ga. App. 675, 388 S.E.2d 754 (1989); Ford v. Olympia Skate Ctr., Inc., 213 Ga. App. 600, 445 S.E.2d 362 (1994).
Relation back when defendant has notice of cause of action and is not prejudiced.
- When defendant is clearly on notice of the "cause of action" sought to be asserted, and is not prejudiced for lack of such notice, amendment by the plaintiff under subsection (c) of this section to add parties will relate back. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Required notice of institution of the action may be formal or informal. Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974).
Notice of incidence giving rise to litigation does not satisfy requirement of subsection (c) of this section that party sought to be added must have notice of institution of action. Hall v. Hatcher Sales Co., 149 Ga. App. 133, 253 S.E.2d 812 (1979); Harrison v. Golden, 219 Ga. App. 772, 466 S.E.2d 890 (1995).
Fair notice as protection intended by statute of limitation.
- Subsection (c) of this section is based on idea that party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitations than one who is informed of the precise legal description of the rights sought to be enforced; hence, if original pleading gives fair notice of the general fact situation out of which the claim arises, the defendant will not be deprived of any protection which the statute of limitations was designed to afford the defendant. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).
Statute of limitation will bar relation back when original complaint did not fairly notify defendant. Downs v. Jones, 140 Ga. App. 752, 231 S.E.2d 816 (1976), vacated on other grounds, 142 Ga. App. 316, 235 S.E.2d 760 (1977); Swan v. Johnson, 219 Ga. App. 450, 465 S.E.2d 684 (1995); Harding v. Godwin, 238 Ga. App. 432, 518 S.E.2d 910 (1999); Deleo v. Mid-Towne Home Infusion, Inc., 244 Ga. App. 683, 536 S.E.2d 569 (2000); Stephens v. McDonald's Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000).
There was no error in dismissing the petitioner's civil rights complaint without prejudice and with leave to amend and the petitioner's subsequent motion to reconsider because the petitioner did not identify any legal standards or procedures the judge improperly applied, manifest errors in fact-finding by the judge, or newly discovered evidence; the petitioner erroneously argued the dismissal was tantamount to a dismissal with prejudice. McFarlin v. Douglas County, F.3d (11th Cir. Sept. 30, 2014)(Unpublished).
Statute of limitations bars addition of new parties in renewal action.
- Interaction of the renewal statute (O.C.G.A. § 9-2-61) with the amendment provisions of subsection (c) of O.C.G.A. § 9-11-15 does not permit the addition of a new party to a second lawsuit which is filed within the six-month renewal period but outside the statute of limitations. Wagner v. Casey, 169 Ga. App. 500, 313 S.E.2d 756 (1984).
Requirements for adding party by amendment not satisfied. See Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984); Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 436 S.E.2d 63 (1993).
Trial court properly denied the plaintiffs' motion to amend their medical malpractice complaint against the state entities in order to "correct an alleged misnomer," pursuant to O.C.G.A. § 9-10-132, as the plaintiffs sought to add two party defendants, who were new and distinct and who had not been served with process; there was no showing that the parties sought to be added had actual notice of the litigation, pursuant to O.C.G.A. § 9-11-15(c), for purposes of amendment under the relation back doctrine. Green v. Cent. State Hosp., 275 Ga. App. 569, 621 S.E.2d 491 (2005).
Trial court's denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 9-2-61, but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-11-15(a) and9-11-21; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642 (2006).
In an injured party's direct action against an insurer, because the injured party failed to seek leave of court to add the insurer's insured as a party, and the relation back doctrine did not apply, the insurer and the insured were properly dismissed from the injured party's lawsuit. Crane v. State Farm Ins. Co., 278 Ga. App. 655, 629 S.E.2d 424, cert. denied, 2006 Ga. LEXIS 544 (2006).
In a worker's personal injury suit, the trial court properly denied the worker's motion to add a franchisor as a defendant under O.C.G.A. § 9-11-15(c). The franchisor had not received timely notice of the lawsuit, and the mere fact that the franchisor was a subsidiary of a defendant corporation was insufficient, in and of itself, to impute the corporation's notice of the lawsuit to the franchisor. Matson v. Noble Inv. Group, LLC, 288 Ga. App. 650, 655 S.E.2d 275 (2007).
Parking lot owner was entitled to dismissal of a plaintiff's negligence action because the amended complaint adding the owner as a defendant did not relate back under O.C.G.A. § 9-11-15(c) and, thus, was barred by the statute of limitations because the mere fact that the owner's attorney worked in the same firm as the original defendants' attorney did not impute knowledge of the lawsuit to the owner. LAZ Parking/Georgia, Inc. v. Jones, 294 Ga. App. 122, 668 S.E.2d 547 (2008).
Trial court did not err in denying a motion to substitute parties made by plaintiffs in their negligence suit against a defendant for fire damage because the plaintiffs had known of the existence and potential liability of the corporation the plaintiffs sought to add as a party for more than five years, and the statute of limitations had run. Barrs v. Acree, 302 Ga. App. 521, 691 S.E.2d 575 (2010).
Request by a deceased patient's widow to add the treating physician's employer to the widow's medical malpractice action was properly denied as the widow failed to show that the employer had notice of the institution of the lawsuit prior to the expiration of the statute of limitations; notice to the hospital and the physician of the institution of litigation did not constitute notice to the employer, even though they were all insured by the same carrier. Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537, 746 S.E.2d 734 (2013).
Party offering amendment must demonstrate no inexcusable delay.
- Party offering the amendment adding a new party must demonstrate that the party has not been guilty of inexcusable delay. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983).
Refusal to add and change designation of third-party defendants.
- Trial court did not err in denying the plaintiff's motion to add and change the designation of third-party defendants, when the third-party defendants were aware of the plaintiff's charges against the defendants and were defending against the defendants' claims before the statute of limitations had expired, and the plaintiff offered no excuse for the delay in attempting to add third-party defendants. Hall v. Scott USA, Ltd., 198 Ga. App. 197, 400 S.E.2d 700 (1990).
Movant may establish lack of prejudice in amendment by showing "identity of interest" between the old and the new parties. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983).
Amendment seeking to add insurer, who had subrogation rights in plaintiff's original cause, as party plaintiff was proper and related back to the original petition. Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983), aff'd, 255 Ga. 27, 335 S.E.2d 113 (1985).
Relation back provisions of subsection (c) do not apply to service of uninsured motorist carrier.
- Relation back provisions of O.C.G.A. § 9-11-15(c) do not apply to situations involving service of an uninsured motorist carrier, if for no other reason than simply because such service does not necessarily result in the insurer becoming a party to the action. State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 383 S.E.2d 157, cert. denied, 191 Ga. App. 923, 383 S.E.2d 157 (1989).
Court did not abuse discretion in denying plaintiff's motion to add plaintiff's spouse as a party since the suit had been pending and active for over seven years and the party to be added knew of the suit (as did the party seeking the spouse's addition) and the new party was asserting an independent claim and offered no justification for delaying entry into the lawsuit. Maitlen v. Derst, 178 Ga. App. 305, 342 S.E.2d 777 (1986).
Action against unknown defendant when service not had prior to running of statute.
- When a complaint is filed against one designated by a fictitious name, as allowed by Ga. L. 1967, p. 226, § 47 (see now O.C.G.A. § 9-11-10(a)), but no service on that defendant is made prior to the running of the statute of limitation, and after running of the statute it is desired to substitute name of and serve actual defendant, that substitution and service constitute "changing the party against whom a claim is asserted" within the meaning of subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15), and the requirements thereof must be met before such substitution may be made. Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121, aff'd sub nom. Providence Wash Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974); Moulden Supply Co. v. Rojas, 135 Ga. App. 229, 217 S.E.2d 468 (1975); Larson v. C.W. Matthews Contracting Co., 182 Ga. App. 356, 356 S.E.2d 35 (1987).
In cases involving "John Doe" or unknown defendant as allowed by Ga. L. 1967, p. 226, § 47 (see now O.C.G.A. § 9-11-10(a)), when there is no service on the entity intended prior to the running of the statute of limitation, limitation plea is good, unless there has been prior notice of institution of the action or its equivalent so as to bring the case within the exception stated within subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15). Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff'd, 236 Ga. 582, 224 S.E.2d 416 (1976).
When an unidentified party is sued as "John Doe" and service as to the unknown party is successful within the statute of limitations, an amendment to the complaint relates back to the filing of the original complaint. When service has not been effected successfully on the John Doe party within the statutory time of limitations, the test of subsection (c) of O.C.G.A. § 9-11-15 applies. Bailey v. Kemper Group, 182 Ga. App. 604, 356 S.E.2d 695 (1987).
When one has filed a complaint naming a "John Doe" defendant, the requirements of subsection (c) of O.C.G.A. § 9-11-15 must be met before the amendment substituting the named party will relate back to the date of the complaint if service has not been effected before the expiration of the statute of limitations. Harper v. Mayor of Savannah, 190 Ga. App. 637, 380 S.E.2d 78 (1989).
Action against unknown defendant and service within limitations period.
- In a personal injury action, a trucking company and an insurance company that were originally sued in a timely manner as "John Doe" and were notified within the applicable limitations period that the companies would be sued as regular parties were not entitled to dismissal as the second complaint related back. McNeil v. McCollum, 276 Ga. App. 882, 625 S.E.2d 10 (2005).
Leave and order of court to make new party defendant.
- Plaintiff must obtain leave of court for filing an amendment seeking to make a new party defendant, and obtain an order to that effect. Pascoe Steel Corp. v. Turner County Bd. of Educ., 139 Ga. App. 87, 227 S.E.2d 887 (1976).
In order for an additional party to be added to an existing suit by amendment pursuant to O.C.G.A. § 9-11-15, leave of court must first be sought and obtained pursuant to O.C.G.A. § 9-11-21. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983).
Prior to adoption of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), failure to name necessary party defendants was nonamendable and required dismissal. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).
When amended complaint to add a party defendant was filed within statutory period, the fact that service was perfected upon added party defendant one day after two-year limitation period did not bar the amended complaint. Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973).
That amendment might relate back and bar statute of limitation is not prejudice such as to bar the amendment to add a party. Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983), aff'd, 255 Ga. 27, 335 S.E.2d 113 (1985).
Amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983); Harper v. DOT, 195 Ga. App. 602, 394 S.E.2d 398 (1990).
Since the statute of limitation had not run at the time plaintiffs filed their first amendments adding a new party defendant it was within the trial court's discretion to grant later motions to amend, although filed after the statute of limitations had run, and have the amendments relate back to the date the original complaints were filed when the occurrence, conduct, or transaction in the original pleadings were the same as that set forth in the amendments; the added party would not be prejudiced in maintaining its defense on the merits; and the added party knew or should have known that the actions would have been brought against it. Bil-Jax, Inc. v. Scott, 183 Ga. App. 516, 359 S.E.2d 362, cert. denied, 183 Ga. App. 905, 359 S.E.2d 362 (1987).
Addition of new party not allowed when statute of limitations has run.
- When husband and wife sought an order permitting them to amend their complaint to add, as a defendant, a probation officer responsible for supervising the juvenile who beat the husband, but the order was sought after the statute of limitations had run and the two submitted no excuse for having failed to name and serve the proposed new party, the trial court was correct in not allowing the complaint to be amended. Sargent v. Department of Human Resources, 202 Ga. App. 874, 415 S.E.2d 918 (1992).
Georgia renewal statute, O.C.G.A. § 9-2-61, could not have been used to suspend the running of the statute of limitation as to defendants different from those originally sued; the trial court did not err in dismissing a premises liability complaint when the injured person originally sued an incorrect defendant, then later sued the store owner after the statute of limitations had expired, then, after that case was dismissed again sued the original incorrect defendant, and finally amended the complaint to include the store owner. Brown v. J. H. Harvey Co., 268 Ga. App. 322, 601 S.E.2d 808 (2004).
Because a belated claim filed against an alleged homebuilder's partner did not relate back to the date of the original complaint, as required by O.C.G.A. § 9-11-15(c), summary judgment in favor of the homebuilder was correctly granted based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v. Lamb, 289 Ga. App. 25, 656 S.E.2d 164 (2007).
Dropping of unintended party.
- When a person served with process intended for another answers by denying that the person is the intended defendant, and counterclaims for malicious use of process, the plaintiff could have moved the court, upon learning of the error, to drop the unintended party pursuant to O.C.G.A. § 9-11-15. Bank South, N.A. v. Tate, 190 Ga. App. 248, 378 S.E.2d 486, cert. denied, 190 Ga. App. 897, 378 S.E.2d 486 (1989).
Addition of party authorized.
- Trial court did not abuse the court's discretion in granting the plaintiffs' eleventh-hour motion to amend and add the defendant as a party. Little Tree, Inc. v. Fields, 240 Ga. App. 12, 522 S.E.2d 509 (1999).
Because an administratrix amended a wrongful death complaint to reflect that such was filed in both a capacity as the administratrix of the decedent's estate and as next friend of the decedent's minor children, and there was a direct connection between the old and new parties, the complaint, as amended, related back to the original complaint; further, because the record showed that the decedent's children reached their majority after the complaint was filed, the trial court did not err in adding the children as real parties in interest. Rockdale Health Sys. v. Holder, 280 Ga. App. 298, 640 S.E.2d 52 (2006).
Trial court did not err in finding that the relation-back statute, O.C.G.A. § 9-11-15(c), applied and that the amendment to a corporation's complaint adding the corporation's president and the president's spouse related back to the brokers' original filing of the lawsuit because all of the relevant claims in the case arose out of the same facts, conduct, transaction, or occurrence pursuant to O.C.G.A. § 9-11-15(c); the brokers' original complaint, the corporation's counterclaim, and the corporation's amended complaint against both the brokers and the president and the spouse all asserted claims that arose directly from an alleged oral agreement and the subsequent written broker agreement between the corporation and the brokers. Cartwright v. Fuji Photo Film U.S.A., Inc., 312 Ga. App. 890, 720 S.E.2d 200 (2011), cert. denied, No. S12C0600, 2012 Ga. LEXIS 306 (Ga. 2012).
Plaintiffs' motion to add the decedent's widow as a plaintiff in the wrongful death action was improperly denied as the plaintiff's motion met the relation-back requirements because the proposed amendment would not have altered the substance of the wrongful death claim or changed the underlying circumstances set forth in the original complaint; the widow's claim clearly arose out of the same occurrence as that alleged in the original complaint; there was no evidence of prejudice to the defendants or dilatory tactics by the plaintiffs as the original complaint was filed within the applicable statute of limitation; and, although the widow initially did not want to participate in the lawsuit, later the widow's mind was changed. Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 837 S.E.2d 529 (2020).
Motion to add related corporation authorized.
- Even though the plaintiff did not move to amend the plaintiff's complaint to add the proper corporation as a defendant until nine months after receiving the originally named defendant's answer and 10 months after the expiration of the statute of limitations, because the plaintiff's motion to amend conforms to the requirements of subsection (c) of O.C.G.A. § 9-11-15 and was not prejudicial, the trial court abused the court's discretion in denying the motion. Fontaine v. Home Depot, Inc., 250 Ga. App. 123, 550 S.E.2d 691 (2001).
Parents of injured children and one deceased child who sued a car distributor were entitled to add the car manufacturer as a party to the parents' personal injury and wrongful death actions under the relation back doctrine of O.C.G.A. § 9-11-15(c) as the car distributor was the wholly owned subsidiary of the car manufacturer, the distributor and the manufacturer had common officers, the same law firm represented the distributor and the manufacturer, the manufacturer was aware of the lawsuits from the beginning, the claims against the manufacturer arose out of the same events as the claims against the distributor, and the manufacturer would not be prejudiced by the action. Parks v. Hyundai Motor Am., Inc., 258 Ga. App. 876, 575 S.E.2d 673 (2002).
Motion to add proposed defendants improperly denied in payday lending litigation.
- Trial court abused the court's discretion by denying the state's motion to amend the complaint to add proposed defendants as parties because a 20 year statute of limitation applied to payday lending litigation as brought by the state, and the state carried the state's burden of demonstrating that the proposed defendants would not be unfairly prejudiced by their addition as parties since the defendants were closely related to the lenders already named and the interlocutory orders already entered did not apply to the defendants. W. Sky Fin., LLC v. State of Ga. ex rel. Olens, 300 Ga. 340, 793 S.E.2d 357 (2016).
Addition of mortgagee in foreclosure proceeding.
- Amendment to add the mortgagee as copetitioner to an application to confirm a foreclosure sale would be effective under the relation-back rule even though the thirty-day period imposed by O.C.G.A. § 44-14-161 for reporting the sale and obtaining confirmation on the sale expired by the time the mortgagee moved to be added as a party. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, cert. denied, 193 Ga. App. 911, 389 S.E.2d 372 (1989).
Answer to amendment adding party not required.
- Construing the pertinent provisions of O.C.G.A. §§ 9-11-7,9-11-8,9-11-12,9-11-15, and9-11-21 in pari materia, it is clear that the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, authorizes the addition of parties, by order of the court, and that an "amended complaint" effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Chan v. W-East Trading Corp., 199 Ga. App. 76, 403 S.E.2d 840, cert. denied, 199 Ga. App. 905, 403 S.E.2d 840 (1991).
O.C.G.A. § 9-11-21 does not apply when the plaintiff seeks to substitute a named defendant for a "John Doe"; the applicable procedure is that set forth in subsection (c) of O.C.G.A. § 9-11-15. Bishop v. Farhat, 227 Ga. App. 201, 489 S.E.2d 323 (1997).
Relation back not authorized.
- Because the evidence showed that a corporation clearly did not have notice of the institution of the action until after expiration of the statute of limitation, relation back of the complaint to add the corporation was not authorized under subsection (c) of O.C.G.A. § 9-11-15. Khawaja v. Lane Co., 239 Ga. App. 93, 520 S.E.2d 1 (1999).
Because there was no mistake concerning the identity of two motorists involved in a traffic accident with an injured person, the trial court properly held that the injured person's amended complaint adding a claim against a second motorist did not relate back to the original filing; the injured person's complaint identified the second motorist as a possible defendant, showing that there was no mistake concerning identity. Dean v. Hunt, 273 Ga. App. 552, 615 S.E.2d 620 (2005).
Trial court erred in denying a hospital's motion to dismiss an amended complaint because the complaint was filed outside the statute of limitations, O.C.G.A. § 9-3-71(a); it did not relate back to the filing of an original complaint because there was no evidence that the hospital had received timely notice of the action as required by O.C.G.A. § 9-11-15(c). St. Francis Health, LLC v. Weng, 354 Ga. App. 310, 840 S.E.2d 712 (2020).
Supplemental Pleadings
Supplemental pleading allowable only in court's discretion.
- Supplemental pleading pursuant to subsection (d) of this section is allowable not as a matter of right or duty, but only upon motion and at the discretion of the trial judge. Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 213 S.E.2d 909 (1975).
When a supplemental proceeding was filed without permission, no harmful error occurred because the adverse party was later given an opportunity to appear before the trial court and argue against the supplement. Tyson v. McPhail Properties, Inc., 223 Ga. App. 683, 478 S.E.2d 467 (1996).
Opposite party to be afforded notice and opportunity for hearing.
- Provision in subsection (d) of this section for reasonable notice to the opposite party before filing of a supplemental pleading is allowed is designed to afford notice and an opportunity to be heard on the merits. Department of Agric. v. Country Lad Foods, Inc., 226 Ga. 631, 177 S.E.2d 38 (1970).
Lack of prior notice not harmful when rule nisi issued.
- When a supplemental pleading is allowed without prior notice to the opposite party, but a rule nisi for hearing thereon on a day certain is issued and served, and hearing is thereafter had on the merits, failure to afford prior notice, while irregular, did not constitute harmful error. Department of Agric. v. Country Lad Foods, Inc., 226 Ga. 631, 177 S.E.2d 38 (1970).
When corporation, after filing answer, assigns various instruments to the corporation's wholly owned subsidiary, and amends the corporation's counterclaim by adding claims based on these assignments, these additional causes of action do not constitute compulsory counterclaims which the corporation was required to assert at the time the corporation filed the corporation's original answer, when there is no evidence that the subsidiary is a sham, or that it is being used to defeat a public convenience, to justify a wrong, protect fraud, defend crime, or any other reason which in equity and good conscience would justify the disregard of its separate entity. Bass v. Citizens & S. Nat'l Bank, 168 Ga. App. 668, 309 S.E.2d 850 (1983).
Failure to allow amendment not shown.
- Trial court did not err in dismissing the tort claims filed by a president, instead of allowing the president leave to amend, as the trial court did not prevent the president from amending the complaint; further, the president did not show that the trial court refused to permit an amendment. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).
Additional claims to interest in garnishment suit not tied to consent.
- Because, in a garnishment suit brought against an insurer, the insurer made a clear objection to the plaintiffs' additional claims to interest under a consent judgment with its insured, it could not be said that the claims were tried with the insurer's express or implied consent under O.C.G.A. § 9-11-15(b). St. Paul Reinsurance Co. v. Ross, 276 Ga. App. 135, 622 S.E.2d 374 (2005).
New theory of recovery.
- Trial court did not err in entering summary judgment in favor of a grantor's grandsons in an action filed by the grantor's wife, daughter, and granddaughter challenging the validity of a quitclaim deed because res judicata compelled summary judgment on the counts alleging a cloud on the title, undue influence, and mistake of fact since there was an identity of the parties, a decision of the court of appeals in a prior appeal upholding the trial court's grant of summary judgment constituted an adjudication on the merits, and the causes of action raised in the amended complaint were matters put in issue or which under the rules of law could have been put in issue in the original complaint; restyling the complaint in terms of a theory of recovery ascertainable in the original case will not revive a cause of action that was defeated on appeal from a summary judgment ruling. Smith v. Lockridge, 288 Ga. 180, 702 S.E.2d 858 (2010).
RESEARCH REFERENCES
Am. Jur. 2d.
- 51 Am. Jur. 2d, Limitation of Actions, §§ 239, 240, 241, 391. 59 Am. Jur. 2d, Parties, § 402 et seq. 61A Am. Jur. 2d, Pleading, §§ 662 et seq., 693 et seq. 61B Am. Jur. 2d, Pleading, § 737 et seq.
19B Am. Jur. Pleading and Practice Forms, Pleading, §§ 151, 184.
C.J.S.- 35A C.J.S., Federal Civil Procedure, §§ 173, 290, 313 et seq., 330 et seq. 35B C.J.S., Federal Civil Procedure, §§ 1058, 1136. 36 C.J.S., Federal Courts, §§ 614 et seq, 639 et seq. 71 C.J.S., Pleading, § 279 et seq.
ALR.
- Effect of proving case not pleaded where amendment cannot be made, 29 A.L.R. 638.
Amendment of pleading to correct designation of court or judge, 65 A.L.R. 709.
Amendment of process or pleading by changing description or characterization of party from corporation to individual, partnership, or other association, or vice versa, 121 A.L.R. 1325.
Amendment of process or pleading by changing or correcting mistake in name of party, 124 A.L.R. 86.
Variance between pleading and proof in suit for specific performance of oral agreement of decedent to leave property at death, 130 A.L.R. 231.
Substitution of plaintiff as proper subject for amendment of complaint, 135 A.L.R. 325.
Amendment of pleading after limitation period changing from allegation of negligence to allegation of fraud, or vice versa, 141 A.L.R. 1363.
Amendment of petition or complaint after statute of limitations has run, by reinstating codefendant who had been dismissed from the action otherwise than upon merits, 143 A.L.R. 1182.
Power of court to award alimony or property settlement in divorce suit as affected by failure of pleading or notice to make a claim therefor, 152 A.L.R. 445.
Change in party after statute of limitations has run, 8 A.L.R.2d 6.
Admissibility, in vehicle accident case, of evidence of opposing party's intoxication where litigant's pleading failed to allege such fact, 26 A.L.R.2d 359.
Amendment of pleadings to assert statute of limitations, 59 A.L.R.2d 169.
Failure to give notice of application for default judgment where notice is required only by custom, 28 A.L.R.3d 1383.
Amendment, after expiration of time for filing motion for new trial in civil case, of motion made in due time, 69 A.L.R.3d 845.
Medical malpractice: amendment purporting to change the nature of the action or theory of recovery, made after statute of limitations has run, as relating back to filing of original complaint, 70 A.L.R.3d 82.
Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933.
Relation back of amended pleading substituting true name of defendant for fictitious name used in earlier pleading so as to avoid bar of limitations, 85 A.L.R.3d 130.
Amendment of pleading after limitation has run, so as to set up subsequent appointment as executor or administrator or plaintiff who professed to bring the action in that capacity without previous valid appointment, 27 A.L.R.4th 198.
Rule 15(c), Federal Rules of Civil Procedure, or state law as governing relation back of amended pleading, 100 A.L.R. Fed. 880.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - products liability cases, 93 A.L.R.6th 463.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - wrongful death cases, 94 A.L.R.6th 111.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - medical malpractice cases against physicians and other individual health care providers, 95 A.L.R.6th 85.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers, 97 A.L.R.6th 375.
Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers, 98 A.L.R.6th 93.
Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: estates, and other or unspecified parties, 99 A.L.R.6th 1.
Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - construction cases, 104 A.L.R.6th 1.