Raul Moreno v. Carniceria Loa 2, a Sole Proprietorship of Jose Madrigal ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 20, 2019
In the Court of Appeals of Georgia
A19A0882. MORENO v. CARNICERIA, LOA #2.
RICKMAN, Judge.
Following an alleged slip and fall at Carniceria Loa #2, Raul Moreno filed suit
against Carniceria Loa #2, aka Carniceria Loa, Inc. and John Doe seeking damages.
After Carniceria Loa #2 filed a special appearance answer informing Moreno that it
was not associated with Carniceria Loa, Inc., Moreno filed an amended complaint
naming Carniceria Loa #2 and John Doe as the defendants. Thereafter, Moreno
dismissed the action without prejudice.
Approximately six months later, Moreno filed a renewal complaint against
Carniceria Loa #2, a sole partnership of Jose Madrigal. The trial court granted
Carniceria Loa #2’s motion for summary judgment, finding that Moreno’s amended
complaint was void because it was not the correction of a misnomer and thus,
Moreno’s claims were time barred because he failed to file suit against Carniceria Loa
#2 prior to the expiration of the two-year statute of limitation. On appeal, Moreno
contends that the trial court erred by dismissing his complaint. For the following
reasons, we vacate the judgment and remand the case to the trial court.
Initially, we recognize that “[i]t is well-established that there is no magic in
nomenclature, and in classifying pleadings the courts will construe them to serve the
best interests of the pleader, judging the pleading by its function rather than by its
name.” (Citation and punctuation omitted.) Doe v. State, 347 Ga. App. 246, 250 (1)
(819 SE2d 58) (2018). Because the substance of Carniceria Loa #2’s motion for
summary judgment requested that Moreno’s complaint be dismissed because it was
barred by the statute of limitation, we will interpret Carniceria Loa #2’s motion for
summary judgment as a motion to dismiss. See Gullatt v. Omega Psi Phi Fraternity,
248 Ga. App. 779, 779 (1) (546 SE2d 927) (2001) (“A motion to dismiss barred
claims is properly granted when a complaint shows on its face that the statute of
limitation has run and there is no further showing by amendment or by affidavit that
a tolling of the statute is possible.”) (citations and punctuation omitted).
“When a question of law is at issue, such as whether the statute of limitation
bars an action, we owe no deference to the trial court’s ruling and apply the plain
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legal error standard of review.” (Citation and punctuation omitted.) Harpe v. Hall,
266 Ga. App. 340, 340 (596 SE2d 666) (2004).
So viewed, the day before the statute of limitation expired, Moreno filed his
original complaint against Carniceria Loa #2 aka Carniceria Loa, Inc. and John Doe
alleging that due to negligent acts of defendants’ employees and agents he was
injured. See OCGA § 9-3-33 (“actions for injuries to the person shall be brought
within two years after the right of action accrues”). The complaint states that process
may be served upon the registered agent for Carniceria Loa. Following service of
process upon the registered agent for Carniceria Loa, Carniceria Loa #2 filed a special
appearance answer asserting, inter alia, that Carniceria Loa #2 was a sole
proprietorship and not affiliated with Carniceria Loa, Inc. Carniceria Loa #2 also filed
an affidavit from Jose Madrigal who averred that he was the owner and proprietor of
Carniceria Loa #2.
It appears from the record that after Carniceria Loa #2 filed its special
appearance, Moreno twice served Madrigal with the original complaint. Moreno then
filed an amended complaint, naming Carniceria Loa #2 and John Doe as defendants,
and served it upon Madrigal. Approximately one week later, Moreno dismissed the
action without prejudice.
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Approximately six months after dismissing the action, Moreno filed a renewal
complaint against Carniceria Loa #2, a sole proprietorship of Jose Madrigal.
Carniceria Loa #2 moved for summary judgment, arguing that Moreno’s renewal
complaint was an improper attempt to renew his personal injury action because the
renewal suit was filed after the expiration of the statute of limitation and did not name
the same defendants as in the first complaint. The trial court agreed with Carniceria
Loa #2 and dismissed the action.
Moreno contends that the trial court erred by dismissing his action against
Carniceria Loa #2. Specifically, Moreno argues, inter alia, that because he properly
served Madrigal with the original complaint prior to filing the amended complaint,
the amendment related back to the original filing of the complaint before the
expiration of the statute of limitation.
“All misnomers, whether in the Christian name or surname, made in writs,
pleadings, or other civil judicial proceedings, shall, on motion, be amended and
corrected instanter without working unnecessary delay to the party making the same.”
OCGA § 9-10-132. “When a person has been sued in their trade name, this misnomer
may be corrected to sue in their real or true name; however, the amendment cannot
state a new cause of action or introduce a new party to the suit.” Foskey v. Vidalia
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City School, 258 Ga. App. 298, 299 (a) (574 SE2d 367) (2002). “Thus, an amendment
that seeks to correct the name of the right party sued shall be permitted, but if a new
party on the record is brought into the suit, then such substitution should be refused.”
Id. “Where the real defendant was properly served or acknowledged service, an
amendment to correct a misnomer to set forth the correct identity of this defendant is
not a change of parties requiring a court order, but a correction of a misnomer, even
if the statute of limitation has run.” Id. at 300. See Northgate Village Apts. v. Smith,
207 Ga. App. 479, 481 (2) (428 SE2d 381) (1993) (“Where the real defendant has
been properly served, a plaintiff has the right to amend in order to correct a misnomer
in the description of the defendant contained in the complaint.”) (citation and
punctuation omitted); London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 695 (2)
(212 SE2d 21) (1975) (same).
Here, in the “background” section of its order, the trial court stated that “the
summons and [o]riginal [c]omplaint [were] served on [Carniceria Loa #2]. Later in
the analysis section, the trial court cited to Foskey for the proposition that “[w]hen the
actual defendant is served, despite being incorrectly identified in the complaint, the
plaintiff can correct this error without leave of court. . . Meaning in a case where the
defendant has been served, this court will allow the correction of an inadequate or
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defective designation.” Interestingly, the trial court explained that here “[Moreno’s]
amendment was not the correction of a misnomer because not only was [Carniceria
Loa #2] never served with the [o]riginial [c]omplaint, but this amendment substituted
one entity for another entity.”
It appears from the record that Carniceria Loa #2 was served with the original
complaint when Moreno served its sole proprietor, Madrigal. However, we cannot
reconcile the trial court’s order which finds that Carniceria Loa #2 both was and was
not served with the original complaint. Whether Carniceria Loa #2 was properly
served with the original complaint is a fact that must be found by the trial court prior
to engaging in any further analysis. Should the trial court find that Carniceria Loa #2
was properly served, then it should determine what effect, if any, that service has on
the viability of the renewal complaint. Accordingly, we vacate the judgment and
remand the case to the trial court for proceedings consistent with this opinion. See
generally Chatham v. World Arts & Crafts Center, 147 Ga. App. 421, 422 (249 SE2d
139) (1978).
Judgment vacated; case remanded. Miller, P. J., and Reese, J., concur.
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