Larson v. CW MATTHEWS CONTRACTING COMPANY, INC.
Larson v. CW MATTHEWS CONTRACTING COMPANY, INC.
Opinion of the Court
Appellants filed suit on April 26, 1984, against the Commissioners of Cobb County and John Doe, described as an unknown contractor who had done road work at the site of the automobile accident in which appellants were injured on June 24, 1982. On February 20, 1985, appellants amended their complaint to identify John Doe as C. W. Matthews Contracting Company, and appellee was served on February 26, 1985. Appellee sought and was granted summary judgment on the ground that the statute of limitation had expired and appellants’ failure to comply with OCGA § 9-11-15 (c) deprived them of the statute’s relation back feature.
1. Appellee, citing Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976), maintains that appellants’ failure to obtain leave of
2. The requirements of OCGA § 9-11-15 (c) must be met before appellants’ amendment substituting appellee for the party designated by a fictitious name in their complaint will relate back to the date of the complaint. See Moulden Supply Co. v. Rojas, supra. OCGA § 9-11-15 (c) provides that “[a]n amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if [the claim asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth in the original pleading], 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). It is undisputed that the claim asserted in the amended pleading arises out of the occurrence set forth in the original complaint. It is also undisputed that appellee did not become aware of the institution of the action by appellants until it received a letter from appellants’ attorney on October 4, 1984, four months after the expiration of the two-year statute of limitation for the commencement of a personal injury action. See OCGA § 9-3-33. Therefore, appellants’ substitution of appellee for John Doe did not relate back to the date of the filing of the original complaint, and the personal injury action filed by appellants against appellee was properly disposed
3. Appellants argue that the four-year statute of limitation for injury to personalty (OCGA § 9-3-31) is applicable to their lawsuit. If it is, the prerequisites to effect the relation back portion of 9-11-15 (c) have been met since appellee received notice of the action prior to the expiration of the four-year period of limitation. Appellants alleged in their complaint that they were injured in an automobile accident and had suffered “severe injuries.” Construing, as we must, appellants’ pleading to serve their best interests (see Allrid v. Emory Univ., 166 Ga. App. 130, 132 (2) (303 SE2d 486) (1983)), and insofar as their allegations may be read as seeking damages from appellee for an injury to personalty (as distinguished from seeking damages for personal injury), appellants’ substitution of appellee for John Doe was timely under OCGA § 9-11-15 (c), and summary judgment was erroneously granted appellee on appellants’ allegation of injury to personalty.
Judgment affirmed in part and reversed in part.
Concurring Opinion
concurring specially.
I concur fully in Divisions 2 and 3 but cannot concur in Division 1. The issue there decided was not raised or ruled on in the trial court but appears only in appellee’s brief, as an additional ground in support of summary judgment. Thus it does not present an issue for review and determination by this Court. Morris v. State, 179 Ga. App. 228, 229 (3) (345 SE2d 686) (1986); In re R. K. J., 179 Ga. App. 112, 113 (3) (345 SE2d 658) (1986).
I am authorized to state that Presiding Judge Deen joins in this special concurrence.
Reference
- Full Case Name
- LARSON Et Al. v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
- Cited By
- 8 cases
- Status
- Published