OCONEE COUNTY v. CANNON ( 2021 )

In the Supreme Court of Georgia
Decided: February 1, 2021
S20G0584. OCONEE COUNTY v. CANNON et al.
PETERSON, Justice.
Ronald and Christy Cannon sued Oconee County after a
vehicle chase initiated by an Oconee County sheriff’s deputy ended
in their daughter’s death. The trial court granted the County’s
motion for summary judgment, holding that (1) the Sheriff of Oconee
County in his official capacity, not the County, was liable for the
deputy’s actions; and (2) the Cannons could not substitute the
Oconee County Sheriff in his official capacity as the defendant in
place of Oconee County because the statute of limitations had
expired and the relation-back doctrine embodied in OCGA § 9-11-15
(c) did not apply. The Court of Appeals affirmed the trial court’s
determination as to the proper defendant but reversed its ruling
that relation-back did not apply. See Cannon v. Oconee County, 353
Ga. App. 296 (835 SE2d 753) (2019). We granted the County’s
petition for a writ of certiorari to review the Court of Appeals’s
reversal. We hold that the application of the relation-back doctrine
depends on whether the proper defendant knew or should have
known that the action would have been brought against him but for
the plaintiff’s mistake, not on what the plaintiff knew or should have
known and not on whether the plaintiff’s mistake was legal or
factual. We vacate the decision of the Court of Appeals and remand
with direction to remand to the trial court for application of the
proper standard.
1. Background
On September 14, 2015, Deputy Golden Sanders with the
Oconee County Sheriff’s Office attempted to stop a Jeep SUV in
which Jessica Cannon was a passenger. The SUV accelerated and a
brief high-speed pursuit ensued, ending when the SUV collided with
a tractor-trailer. Both the driver of the SUV and Jessica were killed
in the crash. The Oconee County Sheriff, Scott Berry, met with
Jessica’s parents, Ronald and Christy Cannon, to inform them of
2
their daughter’s death.
The Cannons sent a timely presentment of their claim to
Oconee County, the Oconee County Sheriff’s Office, and other
government officials. (The deputy’s patrol car was insured through
Oconee County’s insurance policy.) In January 2017, the Cannons
filed a wrongful death suit naming Oconee County as the lone
defendant. The complaint alleged that at the time of the accident,
Deputy Sanders “was acting in the course and scope of his
employment as a police officer with the Oconee County Sheriff’s
Office.” The County admitted that allegation in its answer. The
complaint also alleged that the County was liable for Deputy
Sanders’s acts and omissions under the doctrine of respondent
superior. The County responded with a general denial of that
allegation. The County’s answer did not raise an improper-party
defense, nor did it specifically assert that the County could not be
held liable because it was not Deputy Sanders’s employer.
In discovery, the County indicated that representatives of the
Oconee County Sheriff’s Office were “involved in gathering the
3
information to answer Plaintiffs’ discovery requests.” The Cannons
made multiple requests for documents relating to “your employees,”
and the County responded to several of those requests by providing
information regarding employees of the Sheriff’s Office. The
Cannons deposed several employees of the Sheriff’s Office, including
Deputy Sanders and his supervisor. In July 2018, after the County
designated Sheriff Berry as its Rule 30 (b) (6) deponent, see OCGA
§ 9-11-30 (b) (6), the Cannons deposed the Sheriff; that deposition
served as both the County’s Rule 30 (b) (6) deposition and the
Sheriff’s personal deposition.
During the litigation, Sheriff Berry sent a letter to counsel for
the Cannons regarding an open records request they had sent to the
Sheriff’s Office requesting communications between the Sheriff’s
Office and the law firm representing the County. In his letter,
Sheriff Berry invoked the attorney-client privilege, stating that
communications between the County or Sheriff’s Office and the
County’s counsel were privileged communications, and that Terry
Williams, counsel for the County, not only represented the County
4
in the present case but “also provides legal representation and
advice to the Oconee County Sheriff’s Office.” The letter repeatedly
referred to Terry Williams as “our attorney.”
In August 2018, the County filed a motion for summary
judgment, arguing among other things that Deputy Sanders was an
employee of the Oconee County Sheriff’s Office, not the County, and
thus the County could not be held vicariously liable for the deputy’s
alleged negligence. The Cannons then submitted a motion to
substitute Sheriff Berry in his official capacity as the defendant in
place of the County under OCGA § 9-11-15 (c), the relation-back
statute, in the event the trial court found him, and not the County,
to be the proper defendant.
The trial court granted the County’s motion for summary
judgment, concluding that the County could not be held vicariously
liable for Deputy Sanders’s actions because deputies are employees
of the Sheriff, and the Sheriff’s Office is independent from the
County. The trial court also denied the Cannons’ motion to
substitute. It found that OCGA § 9-11-15 (c) (2) was not satisfied
5
because the Cannons were aware of Sheriff Berry’s existence and
knew that the Oconee County Sheriff’s Office was Deputy Sanders’s
employer; thus, as a matter of law, “there could be no mistake
concerning the identity of Sheriff Berry” as a proper party. The trial
court also found that there was “no evidence that Sheriff Berry had
or should have had knowledge” that the Cannons made a mistake
regarding his identity.
The Court of Appeals affirmed the trial court’s grant of
summary judgment to the County 1 but reversed the trial court’s
1 The Cannons argued that the lawsuit was governed by OCGA § 36-92-
1 et seq., which waives the sovereign immunity of a “local government entity”
for a loss arising out of the negligent use of a covered motor vehicle, and that
they could not sue Sheriff Berry in his official capacity because sheriffs’ offices
were not included in the definition of “local government entity.” See OCGA §
36-92-1 (3) (defining “local government entity” as “any county, municipal
corporation, or consolidated city-county government of this state”). The
Cannons also argued that suing a sheriff in his official capacity was the same
as suing the county where the sheriff was employed. The Court of Appeals
concluded that a county cannot be held vicariously liable for actions of deputies
and rejected the Cannons’ contention based on its holding in Davis v. Morrison,
344 Ga. App. 527, 531 (1) (810 SE2d 649) (2018) (holding the “term ‘local
government entity’ should [not] be construed so narrowly as to exclude sheriff’s
offices, which though separate from a county itself, nevertheless, clearly
perform governmental services on a local level.” (citation and punctuation
omitted)). See Cannon, 353 Ga. App. at 299-300 (1). The Court of Appeals
acknowledged that Davis was decided after the statute of limitations expired
in this case. See Cannon, 353 Ga. App. at 299 n.3. We did not grant certiorari
to review the holding in Davis. At least some Justices have since questioned
6
denial of the Cannons’ motion to substitute Sheriff Berry, in his
official capacity, as a party defendant. See Cannon, 353 Ga. App.
296. In determining that the Cannons could substitute Sheriff Berry
after the expiration of the statute of limitations, the Court of
Appeals relied on the United States Supreme Court’s interpretation
of the federal relation-back rule (Rule 15 (c) of the Federal Rules of
Civil Procedure) set forth in Krupski v. Costa Crociere S.p.A., 560
U.S. 538 (130 SCt 2485, 177 LE2d 48) (2010). The Court of Appeals
concluded that “the Cannons made a deliberate but mistaken choice
to sue the County” based on their misunderstanding regarding the
proper party to sue under the applicable statute, and that Sheriff
Berry should have known he would be the party sued but for the
Cannons’ mistake because he and his office coordinated with the
County to defend the suit before the statute of limitations expired.
See Cannon, 353 Ga. App. at 302-303 (2). The court analogized the
Cannons’ case to Georgia cases prior to Krupski such as Fontaine v.
the correctness of Davis’s holding on this issue. See Mendez v. Moats, ____ Ga.
____ (____ SE2d _____) (Case No. S19G1095, decided Sept. 28, 2020) (Nahmias,
P. J., and Bethel, J., concurring).
7
Home Depot, Inc., 250 Ga. App. 123 (550 SE2d 691) (2001), where
plaintiffs were allowed to substitute one corporate defendant for
another related entity after the statute of limitations expired, and
distinguished those situations from cases in which the plaintiff
“sought to add individual defendants who had no reason to believe
that the suit might be brought against them.” Cannon, 353 Ga. App.
at 303 (2) (emphasis in original). We issued a writ of certiorari to
consider whether the Court of Appeals properly relied on Krupski.
As we explain below, although our analysis differs from that of
the Court of Appeals, we also conclude that the United States
Supreme Court’s interpretation in Krupski of the federal rule upon
which our own relation-back statute is modeled offers the best
textual interpretation of OCGA § 9-11-15 (c). We thus agree with the
Court of Appeals that the Cannons made a mistake concerning the
identity of the proper defendant. But we disagree that the record ⸺
especially given the findings of the trial court ⸺ allows an appellate
court to conclude that Sheriff Berry, in his official capacity, should
have known he would be the party sued but for the Cannons’
8
mistake. We therefore vacate the decision of the Court of Appeals
and remand the case with direction to remand to the trial court to
apply the proper standard.
2. The most natural reading of OCGA § 9-11-15 (c) (2)
emphasizes the extent of the defendant’s knowledge, not the
nature of the plaintiff’s mistake, and encompasses all
mistakes – legal and factual – regarding the identity of the
proper party.
We review a trial court’s decision on a motion to add a party to
an existing action for abuse of discretion. See Western Sky Financial,
LLC v. Ga., 300 Ga. 340, 357 (3) (a) (793 SE2d 357) (2016). But a
“trial court’s discretion must be exercised in conformity with the
governing legal principles.” Ford Motor Co. v. Conley, 294 Ga. 530,
538 (2) (757 SE2d 20) (2014). “[W]hen a plaintiff can satisfy the
statutory requirements for relation back of an amendment, set out
in OCGA § 9-11-15 (c), denying a motion for leave to amend the
complaint to add a defendant is an abuse of the trial court’s
discretion.” Callaway v. Quinn, 347 Ga. App. 325, 329 (819 SE2d
493) (2018) (citation and punctuation omitted).
When determining the meaning of a statute, we consider the
9
text of the statute itself, because “[a] statute draws its meaning from
its text.” City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807
SE2d 324) (2017) (citation and punctuation omitted). In construing
a passage, “we must afford the statutory text its plain and ordinary
meaning,” view it “in the context in which it appears,” and read it
“in its most natural and reasonable way, as an ordinary speaker of
the English language would.” Deal v. Coleman, 294 Ga. 170, 172-173
(1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted).
“[F]or context, we may look to other provisions of the same statute,
the structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the
legal background of the statutory provision in question.” Thornton
v. State, ___ Ga. ___, ___ (2) (851 SE2d 564) (2020) (citation and
punctuation omitted).
The General Assembly enacted the portion of the relation-back
statute at issue in this case in 1972, amending Georgia’s Civil
Practice Act to incorporate modifications made to the Federal Rules
of Civil Procedure in 1966. See Rich’s, Inc. v. Snyder, 134 Ga. App.
10889, 891 (1) (216 SE2d 648) (1975).2 The text of the relation-back
statute provides as follows:
Whenever the claim or defense asserted in the amended
pleading arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date
of the original pleading. An amendment changing the
party against whom a claim is asserted relates back to the
date of the original pleadings if the foregoing provisions
are satisfied, and if within the period provided by law for
commencing the action against him the party to be
brought in by amendment (1) has received such notice of
the institution of the action that he will not be prejudiced
in maintaining his defense on the merits, and (2) knew or
should have known that, but for a mistake concerning the
identity of the proper party, the action would have been
brought against him.
OCGA § 9-11-15 (c).
Thus, this statute allows a plaintiff to substitute one defendant
for another after the claim would otherwise be barred by the statute
of limitations, provided that three conditions are met: (1) the claim
“arises out of the conduct, transaction, or occurrence set forth . . . in
the original pleading,” (2) the proposed defendant, before the statute
2 Georgia’s relation-back statute has been amended following the 1972
amendment, but the changes are minor and do not alter the substance of the
statute. Compare Ga. L. 1972, p. 689, § 6 with OCGA § 9-11-15 (c).
11
of limitations expired, “received such notice of the institution of the
action that he will not be prejudiced in maintaining his defense on
the merits,” and (3) the proposed defendant, before the statute of
limitations expired, “knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would
have been brought against him.” OCGA § 9-11-15 (c); see also Deleo
v. Mid-Towne Home Infusion, Inc., 244 Ga. App. 683, 684 (536 SE2d
569) (2000). The parties in this case do not dispute that the first and
second conditions are met. This case turns on the third condition.
Because “[t]he language of OCGA § 9-11-15 (c) is modeled after
Federal Rule of Civil Procedure 15 (c),” and the slight differences
between the two are not material to the issue presented here, we
may “look for guidance in decisions of the federal courts interpreting
and applying Rule 15 (c)” to interpret OCGA § 9-11-15 (c). Tenet
Healthsystem GB, Inc. v. Thomas, 304 Ga. 86, 88 (816 SE2d 627)
(2018) (citation and punctuation omitted). 3 In Krupski, which
3 Federal Rule of Civil Procedure 15 (c) (1), which establishes the
federal relation-back doctrine, pertinently provides:
An amendment to a pleading relates back to the date of the original
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interpreted and applied Rule 15 (c), the plaintiff sued the incorrect
corporate entity for injuries sustained while on a cruise, not
realizing that the entity that owned or controlled the cruise ship
where she was injured was a different, yet closely related, entity.
Krupski, 560 U.S. at 556. When she sought to substitute the correct
corporate entity after the statute of limitations expired, the district
court found that she “had not made a mistake concerning the
identity of the proper party” because “the word ‘mistake’ should not
be construed to encompass a deliberate decision not to sue a party
whose identity the plaintiff knew before the statute of limitations
had run.” Id. at 545. But the United States Supreme Court
concluded that the third condition of Rule 15 (c) was met because
relation-back “depends on what the party to be added knew or
pleading when: . . . (B) the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out —
or attempted to be set out — in the original pleading; or (C) the
amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15 (c) (1) (B) is satisfied and
if . . . the party to be brought in by amendment: (i) received such
notice of the action that it will not be prejudiced in defending on
the merits; and (ii) knew or should have known that the action
would have been brought against it, but for a mistake concerning
the proper party’s identity.
13
should have known, not on the amending party’s knowledge.” Id. at
541, 557.
Like the text of the federal relation-back statute, the text of
OCGA § 9-11-15 (c) focuses clearly on the proposed defendant’s
knowledge – “[a]n amendment changing the party against whom a
claim is asserted relates back . . . if . . . the party to be brought in by
amendment . . . (2) knew or should have known . . . .” (emphasis
supplied). This text demonstrates that the proper question in
determining whether the third condition of relation-back is met is
not whether the plaintiff knew or should have known the identity of
the proper defendant, but whether the proper defendant knew or
should have known that the action would have been brought against
him but for the plaintiff’s mistake. See Krupski, 560 U.S. at 548.
Accordingly, “[i]nformation in the plaintiff’s possession is relevant
only if it bears on the defendant’s understanding of whether the
plaintiff made a mistake regarding the proper party’s identity.” Id.“For purposes of that inquiry, it would be error to conflate knowledge
of a party’s existence with the absence of mistake.” Id.14
The County urges that a plaintiff’s mistake must be “factual” 4
to be considered a “mistake concerning the identity of the proper
party,” and that “legal” mistakes, such as the Cannons’ mistake in
believing they could not sue the Sheriff under the applicable statute,
do not qualify as mistakes under OCGA § 9-11-15 (c) (2). For
relation-back to apply, there must be “a mistake concerning the
identity of the proper party.” OCGA 9-11-15 (c). And “making a
deliberate choice to sue one party instead of another while fully
understanding the factual and legal differences between the two
parties is the antithesis of making” such a mistake. Krupski, 560
U.S. at 549 (emphasis supplied). But the County’s argument
contains a critical error: it over-emphasizes the word “identity” at
the expense of the word “proper.” Although “identity” considered in
isolation may usually be a factual issue, an inquiry as to which party
is “proper” carries with it a wide range of legal considerations as well
as factual ones. Thus, although the mistake in this case was not a
4 The County defines a “factual” mistake as one where the plaintiff sues
one defendant while intending to sue another, or where the defendant’s name
in the original complaint is a misnomer.
15
factual mistake about the “identity” of potential defendants, it was
still a mistake about which party was the “proper” defendant.
The statute’s focus on the extent of the defendant’s knowledge
also indicates that the kinds of mistakes about identity that qualify
under the statute are broader than the County suggests. Again, the
defendant’s knowledge, not the nature of the plaintiff’s mistake, is
the key factor in determining whether relation-back applies. It is not
true that “any time a plaintiff is aware of the existence of two parties
and [deliberately] chooses to sue the wrong one, the proper
defendant could reasonably believe that the plaintiff made no
mistake.” Krupski, 560 U.S. at 549. Accordingly, both legal and
factual mistakes can be mistakes concerning the identity of the
proper party.5
5 We are not the only state with a relation-back statute modeled after
federal Rule 15 (c) to follow Krupski’s analysis as the most textually sound.
See, e.g., Flynn v. Campbell, 402 P3d 434, 439-440 (Ariz. 2017) (departing from
state precedent to adopt Krupski’s Rule 15 (c) analysis ⸺ focusing the inquiry
on what the defendant, rather than the plaintiff, knew or should have known,
and recognizing both legal and factual mistakes as cognizable ⸺ because the
Krupski analysis was “more consistent with the [Arizona] Rule’s text and
purpose”).
16
The County also contends that interpreting the word “mistake”
to encompass legal as well as factual mistakes would create a rule
so broad that it would inhibit the purpose of the statutes of
limitation to “provide finality in litigation[,]” Bryant v. Allstate Ins.
Co., 254 Ga. 328, 331 (326 SE2d 753) (1985), and allow the relation-
back exception to the statute of limitations to swallow the rule. But
policy considerations are not a valid reason to depart from the best
reading of the statutory text, and we already determined above that
the best reading encompasses both legal and factual mistakes. The
County’s argument also overlooks the two limiting conditions in
OCGA § 9-11-15 (c) (2): that the defendant must either know or have
reason to know that the lawsuit would have been brought against
him, but for the plaintiff’s mistake; and that the plaintiff must have
made a “mistake” as opposed to a deliberate choice to sue one party
over another with full knowledge of the factual and legal differences
between the two. Far from allowing relation-back whenever a
plaintiff makes a strategic error and then changes its mind, these
conditions significantly limit the circumstances where relation-back
17
may be permitted.
We acknowledge that the Court of Appeals has at times applied
analysis of Georgia’s relation-back statute that is inconsistent with
our analysis above by focusing on the plaintiff’s knowledge rather
than the knowledge of the proposed new defendant. See, e.g.,
Valentino v. Matara, 294 Ga. App. 776, 778 (2) (670 SE2d 480)
(2008); Deleo, 244 Ga. App. at 684-685; Harding v. Godwin, 238 Ga.
App. 432, 434-435 (518 SE2d 910) (1999). To the extent that these
or other cases of the Court of Appeals have applied analysis
inconsistent with what we articulate here, that analysis is
disapproved.
3. Relation-back applies in this case if Sheriff Berry in his
official capacity knew or should have known before the
statute of limitations expired that the Cannons would have
brought their lawsuit against him but for their mistake
concerning the identity of the proper party.
Under the above interpretation of OCGA § 9-11-15 (c) (2), to
determine whether relation-back applies in this case, we ask
whether Sheriff Berry in his official capacity, as the proper
defendant, knew or should have known that the Cannons would
18
have brought their lawsuit against him but for their mistake
concerning the identity of the proper party. The first inquiry is
whether the Cannons made a mistake concerning the identity of the
proper party. Although the Cannons made a deliberate choice to sue
Oconee County rather than suing Sheriff Berry in his official
capacity, the record suggests that they did not fully understand the
legal differences between the two.6 Because the Cannons did not
believe that Sheriff Berry in his official capacity could be a proper
party, in that sense they made a mistake as to the identity of the
proper party.
Therefore, the remaining question in this case is whether
6 In their response to the County’s motion for summary judgment, the
Cannons argued that Oconee County and not Sheriff Berry was the proper
entity to sue under the applicable statute, and that suing Sheriff Berry in his
official capacity was the same as suing the County. The County did not contest
the Cannons’ claim about their state of mind in suing the County; in fact, the
County contended, as it now contends on appeal, that the Cannons could not
substitute Sheriff Berry as the defendant because the Cannons made a legal
mistake about whom to sue rather than a mistake about the Sheriff’s identity.
Moreover, the Court of Appeals concluded that “the Cannons made a deliberate
but mistaken choice to sue the County, rather than Sheriff Berry, in his official
capacity, based upon a misunderstanding of the proper local government entity
to sue for vicarious liability based upon the conduct of a county deputy sheriff.”
Cannon, 353 Ga. App. at 302 (2). The County agrees that conclusion is
supported by the record.
19
Sheriff Berry in his official capacity knew or should have known
before the statute of limitations expired that he would have been
named as the defendant in the original lawsuit but for the Cannons’
mistake. It is clear from the record that Sheriff Berry in his official
capacity knew about the lawsuit even before its initiation because
he received a copy of the presentment. But the record is not clear
whether Sheriff Berry knew or should have known that the Cannons
would have sued him but for their mistake.7 The trial court’s order
denying the Cannons’ motion to substitute found no evidence “that
Sheriff Berry had or should have had knowledge that [the Cannons]
made any mistake whatsoever.” But we cannot simply apply those
findings to the law we clarify today, because the trial court made the
finding prior to this opinion’s clarification of the knowledge that is
7 On remand, if the trial court determines that Sheriff Berry in his
official capacity actually knew that the Cannons would have sued him but for
their mistake, then the Cannons’ amendment to substitute the Sheriff as the
defendant in place of the County would relate back. If the trial court
determines that the Sheriff in his official capacity did not know, however, it
must then determine whether the Sheriff in his official capacity should have
known. This determination might require the trial court to decide the extent
to which Georgia law imputes knowledge of the law to government officials in
their official capacity; such officials in their official capacity are the
government.
20
relevant and the kinds of mistakes that qualify under the statute.
See Fulton County v. Ward-Poag, ___ Ga. ___, ____ (2) (a) (849 SE2d
465) (2020) (“If a trial court significantly misapplies the law or
clearly errs in a material factual finding, we may affirm the trial
court’s exercise of discretion only when we can conclude that, had
the trial court used the correct facts and legal analysis, it would have
had no discretion to reach a different judgment.” (citation and
punctuation omitted)). The extent to which the trial court considered
the relevant question in making its finding regarding Sheriff Berry’s
knowledge is thus unclear. 8 We therefore vacate the decision of the
Court of Appeals with direction to vacate the trial court decision and
8 In fact, it is unclear whether the trial court’s statement was actually a
finding of fact. The trial court also found that the plaintiffs could not have
made a mistake concerning the identity of the proper party as a matter of law;
if the trial court believed no mistake existed, its finding regarding Sheriff
Berry’s knowledge may have reflected its legal conclusion rather than an
evidentiary finding of fact. Moreover, the court indicated that in order to find
that the Sheriff had the required knowledge, it would have to impute to the
Sheriff legal expertise superior to that possessed by the Cannons’ attorneys.
But just because the Cannons’ attorneys did not realize they made a mistake
does not necessarily negate the possibility that Sheriff Berry knew or should
have known that the action would have been brought against him but for the
mistake, especially if Georgia law were to require such imputation to Sheriff
Berry in his official capacity regardless of whether he had actual knowledge as
a matter of fact.
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direct the trial court to make findings consistent with the
appropriate test for application of relation-back as set forth in this
opinion. 9
Judgment vacated and case remanded with direction. All the
Justices concur.
9 Based upon its holding, the Court of Appeals did not address the
Cannons’ alternate enumeration of error that the trial court should have
granted their motion for sanctions under OCGA § 9-11-37 (d) and precluded
the County from raising an improper party defense. Cannon, 353 Ga. App. at
298, 303 (3). The Court of Appeals on remand may address the discovery
sanction issue before remanding this case to the trial court; or, if the Court of
Appeals determines that the issue is too connected with issues to be settled by
the trial court on remand, it may elect to wait and address the discovery
sanction issue only if the case comes before it again on a subsequent appeal.
22