Cobb v. Stephens , 186 Ga. App. 648 ( 1988 )

Carley, Judge.

On September 9, 1983, the son of appellee-plaintiff was struck and killed by an automobile which was being driven by Ms. Robin Bozeman. Appellant-defendant owned the vehicle, but he had purchased it for his daughter’s use. Appellant’s daughter, who was a passenger at the time of the incident, had given Ms. Bozeman permission to drive the car. On March 30, 1984, appellee commenced this wrongful death action against Ms. Bozeman only. On August 10, 1984, while taking the depositions of Ms. Bozeman and of appellant’s daughter, appellee discovered appellant’s ownership of the vehicle.

It was not until July 17, 1985, however, that appellee moved for leave to amend the complaint by adding appellant as a defendant. See OCGA § 9-11-21. The trial court granted that motion on August 27, 1985. However, it was not until September 10, 1985, one day past the expiration of the limitations period, that appellee actually filed her amendment adding appellant as a defendant. Appellant subsequently moved for summary judgment contending that the amendment should not relate back to the commencement of the action and that appellee’s claim against him was thus barred by the statute of limitations. The trial court denied appellant’s motion, finding that appellant had not met his burden of proof, as the movant, to show that the amendment adding him as a party defendant should not relate back. See OCGA § 9-11-15 (c). However, the trial court certified its order for immediate review. This appeal results from this court’s grant of appellant’s motion for an interlocutory appeal from the denial of his motion for summary judgment.

Appellee sought to add appellant as a party defendant to the action rather than to change the original party defendant in the action from Ms. Bozeman to appellant. However, the law in this regard is clear: “ ‘Although [OCGA § 9-11-15 (c)] refers to “an amendment changing the party” it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined.’ ” (Emphasis supplied.) Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14, 17 (2) (217 SE2d 358) (1975).

Despite contentions to the contrary, this broad interpretation of the ambit of OCGA § 9-11-15 (c) as authority to add, as well as to change, parties has been consistently followed. The cases subsequent to Sam Finley, Inc., have, however, established a requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action. In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation back as to that new defendant, but only if the three elements which are specifically enumerated in that provision have first been satisfied. Those three elements are: (1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and, (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. The plaintiff in A. H. Robins Co. had sought to add a defendant under circumstances which would have satisfied the first element of OCGA § 9-11-15 (c), but not the second or the third element. This court held that all three elements of OCGA § 9-11-15 (c) must be satisfied if the original pleadings are to relate back as to a new defendant who is added by amendment: “We do not believe that the addition of parties who are altogether strangers to the original suit, insofar as notice and knowledge thereof [are concerned], was intended to be encompassed within the word ‘changing.’ [Cits.]” (Emphasis supplied.) A. H. Robins Co. v. Sullivan, supra at 535. Clearly, the import of this holding is that the addition of parties who have an involvement in the same set of facts which gave rise to the original complaint and who are also not “altogether strangers to the original suit, insofar as notice and knowledge thereof [are concerned],” would be authorized under OCGA § 9-11-15 (c). Thus, A. H. Robins Co. merely employs a strict construction as to compliance with the statutory mandate and is entirely consistent with this court’s earlier recognition in Sam Finley, Inc., supra, of the broad statutory ambit which can exist upon that compliance.

This court’s consistent adherence to a strict statutory construction of OCGA § 9-11-15 (c) should not be misconstrued as an inconsistent line of authority. The only difference between the A. H. Robins Co. and the Sam Finley, Inc. decisions is that, in the former case, the amendment to add a defendant did not, as a matter of law, satisfy the first element of OCGA § 9-11-15 (c), whereas, in the latter case, the amendment to add a defendant did satisfy that first element. Similarly, such cases as Coley Elec. Supply v. Colonial Eggs of Alma, 165 Ga. App. 108 (1) (299 SE2d 165) (1983) and Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987), are simply cases wherein all of the necessary elements of OCGA § 9-11-15 (c) for the addition of a new party were not satisfied. Other cases, such as Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732 (307 SE2d 530) (1983) and Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987), are simply cases wherein all of the statutory elements for the addition of a new party were satisfied. Thus, rather than an inconsistent line of authority, there is really only a single line of cases which has followed a strict but consistent interpretation of OCGA § 9-11-15 (c) as statutory authority for adding new parties to existing actions. What are, in fact, the necessarily different results of having followed a consistent but strict interpretation of OCGA § 9-11-15 (c) should not be misconstrued as inconsistent holdings. Accordingly, the issue to be determined is where the present case fits within the heretofore unbroken line of authority.

Undoubtedly, appellee may encounter some difficulty in showing that appellant had sufficient notice of the pending action and the requisite knowledge of appellee’s mistake with regard to appellant’s identity as a proper party defendant so that, pursuant to OCGA § 9-11-15 (c), the amendment adding appellant as a defendant should “relate back” to the institution of the action. See generally Bil-Jax, Inc. v. Scott, supra. However, on the present motion for summary judgment, the evidentiary burden as to these issues was upon appellant as the movant. See generally Maelstrom Properties v. Holden, 158 Ga. App. 345 (280 SE2d 383) (1981). Upon our review of the record, we find that, when the evidence is construed most strongly against appellant, he has not met his burden of showing the inapplicability, of OCGA § 9-11-15 (c) and, therefore, the burden never shifted to appellee to show the applicability of that statute. See generally Maelstrom Properties v. Holden, supra; Sam Finley, Inc. v. Interstate Fire Ins. Co., supra. Compare Hall v. Hatcher Sales Co., 149 Ga. App. 133 (2) (253 SE2d 812) (1979). Accordingly, the denial of appellant’s motion for summary judgment on the existing record is affirmed.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur. Birdsong, C. J., Banke, P. J., Pope, Benham, and Beasley, JJ., concur and also concur specially. Deen, P. J., dissents.