McNeil v. McCollum , 276 Ga. App. 882 ( 2005 )

ANDREWS, Presiding Judge,

concurring specially.

I concur in the judgment and in Divisions 1 and 2 of the majority opinion, but not in Division 3. This appeal was taken from the trial court’s denial of the appellants’ motion seeking dismissal on the basis that the statute of limitation barred McCollum from amending the complaint to substitute them for the John Doe defendants because McCollum could not show compliance with the provisions of OCGA § 9-11-15 (c). It is not necessary to separately address whether the appellants properly raised the defense of lack of diligence in perfecting service of process after the statute of limitation expired. The controlling issue is not whether McCollum acted diligently in perfecting service after the expiration of the limitation period, but whether, prior to the expiration of the statute of limitation, the appellants “received such notice of the institution of the action that [they] will not be prejudiced in maintaining [their] defense on the merits,” as provided by OCGA § 9-11-15 (c). Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (380 SE2d 78) (1989).

Decided November 14, 2005 Reconsideration denied December 15, 2005 Gray, Hedrick & Edenfield, William E. Gray II, for appellants. Smith, Shaw & Maddox, Julius W. Peek, Jr., Michael D. McRae, Robert T. Monroe, Drew, Eckl & Farnham, Jeffrey A. Burmeister, for appellees.