CMT Investment Co. v. Automated Graphics Unlimited, Inc. , 175 Ga. App. 353 ( 1985 )

Deen, Presiding Judge.

On July 12, 1982, Automated Graphics Unlimited, Inc. (Automated Graphics) brought suit against Rojac, Inc. (Rojac), d/b/a Old Hickory House, alleging that the defendant had negligently caused a fire which resulted in damage to plaintiff’s place of business. The defendant filed a third-party complaint against CMT Investment Company (CMT) on May 2, 1983. On December 2, 1983, seven months after CMT was impleaded, plaintiff amended its complaint to add CMT as a party defendant. Automated Graphics did not obtain leave of court to add appellant as a party defendant and served a copy of its amended complaint on CMT’s attorney of record rather than on the company through its personal representative. On December 8, CMT answered the amended complaint denominating it a “special appearance and response” and challenged the sufficiency of service. It did not raise the defense of the failure of the plaintiff to obtain leave of court to add it as a direct defendant.

On that same date appellant sought a continuance, claiming that the plaintiff’s amendment completely changed the theory of the lawsuit and it had to “start all over with discovery as the entire theory of our defense must change.” Approximately ten months elapsed between the request for the continuance and the date of trial. On the date of trial, appellant orally contested being brought in as a direct defendant without the leave of court. The trial court denied the motion to dismiss and CMT appeals following the entry of a judgment on a jury verdict against Rojac in the amount of $5,000 and against it in the amount of $15,000. Held:

OCGA § 9-11-21 provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Plaintiff must obtain leave of court for filing an amendment seeking to make a new party defendant, and obtain a court order to that effect. Pascoe Steel Corp. v. Turner County Bd. of Education, 139 Ga. App. 87 (227 SE2d 887) (1976); Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976).

The record here shows that plaintiff Automated Graphics amended its complaint without leave of court, seeking to add as a direct defendant CMT, which was at the time of the amendment a third-party defendant in the action. Service was not perfected upon CMT in any manner allowed under OCGA § 9-11-4; rather, the amended complaint was simply served upon CMT’s attorney as a pleading subsequent to the original complaint pursuant to OCGA § 9-11-5. In response to the amended complaint, CMT filed a special appearance contesting service and otherwise answering. Thus, CMT preserved its service defense. Apparently on the eve of trial, CMT made an oral motion to dismiss. It is clear from the record that at that point, Automated still had not sought or received leave from the court to add CMT as a direct defendant, nor had CMT been served in any manner pursuant to OCGA § 9-11-4.

There was no pretrial hearing or order in this case. Failure of the opposite party to get leave of court to add a party by amendment to an existing suit is not a defense required to be raised in a responsive pleading. Since there was no pretrial hearing, CMT did not waive its service defense as did the defendant in Ga. Power Co. v. O’Bryant, 169 Ga. App. 491 (313 SE2d 709) (1984). Therefore, the present case is controlled by our recent decision in Stone Mtn. Aviation v. Rollins Leasing Corp., 174 Ga. App. 35 (329 SE2d 247) (1985). There, in Division 2, the court held that even where a party is added as a direct defendant in an action in which the party is already a third-party defendant, service of process must be made in the usual way; that is, in accordance with the provisions of OCGA § 9-11-4. Without such service, the trial court lacks jurisdiction to proceed in regard to that party as a direct defendant. Thus, the trial court here lacked jurisdiction over CMT as a direct defendant because CMT was never properly served.

Judgment reversed.

Banke, C. J., Birdsong, P. J., Carley, Sognier, Pope and Benham, JJ., concur. McMurray, P. J., and Beasley, J., dissent.