2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 4 - Parties
§ 9-11-21. Misjoinder and Nonjoinder of Parties

Misjoinder of parties is not ground for dismissal of an action. 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. Any claim against a party may be severed and proceeded with separately.

(Ga. L. 1966, p. 609, § 21.)

- For article surveying Georgia cases in the area of trial practice and procedure from June 1979 through May 1980, see 32 Mercer L. Rev. 225 (1980).

ANALYSIS

• General Consideration
• Adding or Dropping Parties
• Misnomers

Purpose of this section is to give relief to a plaintiff who sues too many or too few parties; the statute was not intended to correct the mistake of suing the wrong party. Lamas Co. v. Baldwin, 120 Ga. App. 149, 169 S.E.2d 638 (1969), later appeal, 140 Ga. App. 37, 230 S.E.2d 13 (1976).

- This section concerns misjoinder and nonjoinder of parties, and merely provides a procedural method to cure joinder errors. Freeman v. Low X-Ray Corp., 130 Ga. App. 856, 204 S.E.2d 803 (1974).

Substantive correctness of joinder is to be tested under other pertinent rules including Ga. L. 1966, p. 609, § 19 (see now O.C.G.A. § 9-11-19). Freeman v. Low X-Ray Corp., 130 Ga. App. 856, 204 S.E.2d 803 (1974).

- Trial court has the discretion, "at any stage of the action and on such terms as are just," to realign the parties. Cawthon v. Waco Fire & Cas. Ins. Co., 259 Ga. 632, 386 S.E.2d 32 (1989).

Trial court did not abuse the court's broad discretion in realigning two parties, plaintiffs in the consolidated third-party action as parties plaintiff for the purpose of allocating peremptory challenges. Naimat v. Shelbyville Bottling Co., 240 Ga. App. 693, 524 S.E.2d 749 (1999).

Trial court did not err under O.C.G.A. § 9-11-21 in realigning the parties to cause the husband, who initially filed the divorce action, to be the defendant and to cause the wife to be the plaintiff; the wife's burden of proof was significantly heavier than the husband's, as the wife had the burden on a claim of fraudulent transfers and on requests for alimony, adultery, and attorney's fees, so the wife was entitled to the procedural rights of a plaintiff, such as those rights to opening and closing statements granted under O.C.G.A. § 9-10-186. Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006).

Trial court did not abuse the court's discretion in allowing party realignment in a suit between former joint members of a limited liability company because under O.C.G.A. § 9-11-21 the trial court had the authority to allow the company to be realigned as the party plaintiff from a nominal defendant in a shareholder derivative suit and there was no need to have a determination that the action could proceed as a purely derivative proceeding. Brooks v. Quinlan, 353 Ga. App. 573, 839 S.E.2d 51 (2020).

§§ 9-11-21 and9-11-42(b). - Severance under O.C.G.A. § 9-11-21 may be principally directed to the separation of claims within multiclaim litigation because of the peculiar relationship or status of parties with respect to particular claims. O.C.G.A. § 9-11-42(b), on the other hand, appears to be devoted to the convenience of adjudication, the avoidance of prejudice and the interests of expedition and economy as dictated by the characteristics and elements of proof of the claims themselves. Vitner v. Funk, 182 Ga. App. 39, 354 S.E.2d 666 (1987).

Statute makes no distinction as to parties plaintiff and parties defendant. Paine v. Thomas, 228 Ga. 519, 186 S.E.2d 737 (1972).

- Substitution of a party is not authorized by provisions of Ga. L. 1969, p. 979, § 1 (see now O.C.G.A. § 9-11-14) regarding bringing in a third party, or by provisions of Ga. L. 1966, p. 609, § 21 (see now O.C.G.A. § 9-11-21) regarding adding or dropping of parties. Nelson v. Sing Oil Co., 122 Ga. App. 19, 176 S.E.2d 227 (1970).

- Ga. L. 1966, p. 609, § 21 (see now O.C.G.A. § 9-11-21) provides no authority for a court's order that another party be joined as a joint tort-feasor when such joinder is incorrect under Ga. L., p. 689, § 7 (see now O.C.G.A. § 9-11-19). Freeman v. Low X-Ray Corp., 130 Ga. App. 856, 204 S.E.2d 803 (1974).

Failure to name the proper parties is an amendable defect, correctable by the parties or upon the court's own motion. Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987).

When the individual members of a city board of education were purportedly parties to an action by amendment and by acknowledgment of service, a trial court's order of substitution was required to make the proper defendant, a city school district, a party substituted in their place; accordingly, the plaintiff's attempt to name the school district a defendant by mere amendment was ineffective and the school district was therefore never served as required by statute. Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367 (2002).

- While O.C.G.A. § 9-11-15(a), in conjunction with O.C.G.A. § 9-11-21, is authority for a trial court to grant a motion to add a party to a pending action, the granting of such a motion does not dispense with the requirement that a new defendant be served. Gaskins v. A.B.C. Drug Co., 183 Ga. App. 518, 359 S.E.2d 364 (1987).

- When a party is added by the court for limited purposes (such as to protect certain funds) and has not been designated a plaintiff or defendant by the court, the provisions of O.C.G.A. § 9-11-13 governing cross-claims do not apply to that party. Spivey v. Rogers, 173 Ga. App. 233, 326 S.E.2d 227 (1984).

When a third-party defendant had not been served as a party to the main action, there could be no judgment entered in the main action by the trial court against the third-party defendant. Stone Mountain Aviation, Inc. v. Rollins Leasing Corp., 174 Ga. App. 35, 329 S.E.2d 247 (1985); CMT Inv. Co. v. Automated Graphics Unlimited, Inc., 175 Ga. App. 353, 333 S.E.2d 196 (1985).

- In a habeas corpus proceeding in which a father seeks to regain custody of the minor children, who had previously been awarded to the mother in a divorce action, in which the writ is directed against the mother's parents, when no service has been had on the mother, the trial judge has the authority to pass an order for service upon her. Nichols v. Love, 227 Ga. 659, 182 S.E.2d 439 (1971).

Cited in Waldrop v. Bettis, 223 Ga. 715, 157 S.E.2d 870 (1967); Peacock Constr. Co. v. Turner Concrete, Inc., 116 Ga. App. 822, 159 S.E.2d 114 (1967); Smith v. Merchants & Farmers Bank, 226 Ga. 715, 177 S.E.2d 249 (1970); Leon Inv. Co. v. Independent Life & Accident Ins. Co., 123 Ga. App. 668, 182 S.E.2d 151 (1971); Crews v. Blake, 52 F.R.D. 106 (S.D. Ga. 1971); King v. King, 228 Ga. 818, 188 S.E.2d 502 (1972); Atlanta Air Fleet, Inc. v. Insurance Co. of N. Am., 130 Ga. App. 15, 202 S.E.2d 192 (1973); Steenhuis v. Todd's Constr. Co., 231 Ga. 709, 203 S.E.2d 530 (1974); Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765, 206 S.E.2d 846 (1974); Gray v. Hall, 233 Ga. 244, 210 S.E.2d 766 (1974); Jahncke Serv., Inc. v. Department of Transp., 134 Ga. App. 106, 213 S.E.2d 150 (1975); S.D.H. Co. v. Stewart, 135 Ga. App. 505, 218 S.E.2d 268 (1975); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975); Mathews v. Brown, 235 Ga. 454, 219 S.E.2d 701 (1975); A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975); Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975); Phillips v. Williams, 137 Ga. App. 578, 224 S.E.2d 515 (1976); Pendley v. Hunter, 138 Ga. App. 864, 227 S.E.2d 857 (1976); Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976); Jesup Carpet Factory Outlet, Inc. v. Ken Carpets of LaGrange, Inc., 142 Ga. App. 301, 235 S.E.2d 684 (1977); Seymour v. Presley, 239 Ga. 572, 238 S.E.2d 347 (1977); Diaz v. First Nat'l Bank, 144 Ga. App. 582, 241 S.E.2d 467 (1978); Star Jewelers, Inc. v. Durham, 147 Ga. App. 68, 248 S.E.2d 51 (1978); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978); C & S Land, Transp. & Dev. Corp. v. Yarbrough, 153 Ga. App. 644, 266 S.E.2d 508 (1980); Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 267 S.E.2d 786 (1980); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983); Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983); Ketcham v. Franklyn Gesner Fine Paintings, Inc., 169 Ga. App. 329, 312 S.E.2d 639 (1983); Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984); Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 314 S.E.2d 903 (1984); Strauss Fuchs Org., Inc. v. LaFitte Invs., Ltd., 177 Ga. App. 891, 341 S.E.2d 873 (1986); Maitlen v. Derst, 178 Ga. App. 305, 342 S.E.2d 777 (1986); Reed v. Adventist Health Systems/Sunbelt, 181 Ga. App. 750, 353 S.E.2d 523 (1987); Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987); Memorial Medical Ctr., Inc. v. Moore, 184 Ga. App. 176, 361 S.E.2d 49 (1987); Washburn v. Sardi's Restaurants, 191 Ga. App. 307, 381 S.E.2d 750 (1989); Harper v. DOT, 195 Ga. App. 602, 394 S.E.2d 398 (1990); Utica Mut. Ins. Co. v. Chasen, 195 Ga. App. 875, 395 S.E.2d 40 (1990); Smitherman v. Mary House Ministries, Inc., 200 Ga. App. 116, 407 S.E.2d 58 (1991); Robinson v. Georgia Hous. & Fin. Auth., 244 Ga. App. 653, 536 S.E.2d 548 (2000); Morton v. Fuller, 264 Ga. App. 799, 592 S.E.2d 460 (2003); M.J.E.S. Enters. v. Martin, 265 Ga. App. 652, 595 S.E.2d 367 (2004); Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 743 S.E.2d 518 (2013); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015); Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586 (2019); Atlanta Women's Specialists, LLC v. Trabue, Ga. , S.E.2d (Sept. 28, 2020).

Adding or Dropping Parties

Section 9-11-15(a) in pari materia with this section.

- When a party seeks to add a new party by amendment, Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15(a)) must be read in pari materia with Ga. L. 1966, p. 609, § 21 (see now O.C.G.A. § 9-11-21), which allows dropping and adding of parties only by order of the court on motion of any party. Clover Realty Co. v. Todd, 237 Ga. 821, 229 S.E.2d 649 (1976), cert. denied, 198 Ga. App. 898, 400 S.E.2d 388 (1991); Slater v. Brigadier Homes, Inc., 198 Ga. App. 67, 400 S.E.2d 338 (1990).

Court order is required to add or drop parties under O.C.G.A. § 9-11-21, and even the liberal amendment provisions of O.C.G.A. § 9-11-15 are limited by this requirement. Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).

In a personal injury action, and by reading O.C.G.A. § 9-11-15(a) in pari materia with O.C.G.A. § 9-11-21, because a plaintiff sued two parties, but substituted only one, the partnership originally sued was not required to file an answer absent an order from the court to do so, and hence could not be found in default; as a result, the trial court correctly found a proper case was made for the default to be opened. Marwede v. EQR/Lincoln L.P., 284 Ga. App. 404, 643 S.E.2d 766 (2007), cert. denied, 2007 Ga. LEXIS 504 (Ga. 2007).

Subsequently-named corporation lacked standing to appeal from orders against the previously-named corporation as that corporation was not a party to the litigation, was not granted or denied intervention pursuant to a motion to amend with leave of court, and an attempted substitution by the predecessor was more than an attempt to correct a misnomer. Degussa Wall Sys. v. Sharp, 286 Ga. App. 349, 648 S.E.2d 687 (2007), cert. denied, 2007 Ga. LEXIS 701 (Ga. 2007).

Trial court erred by denying the plaintiff's motions to amend the complaint as the motions related to the adding of parties because the court failed to consider the proper standard for the addition of parties; the appellate court recognized the confusion caused by the plaintiff's filing of a motion for leave to add additional parties at the same time the plaintiff filed amended complaints to add new causes of action against the original defendants. Benedek v. Bd. of Regents of the Univ. Sys. of Ga., 332 Ga. App. 573, 774 S.E.2d 150 (2015).

- O.C.G.A. § 9-11-21 does not apply when the plaintiff seeks to substitute a named defendant for a "John Doe"; the applicable procedure is that set forth in O.C.G.A. § 9-11-15(c), by which the trial court determines whether the amended complaint relates back to a filing within the statute of limitations. Bishop v. Farhat, 227 Ga. App. 201, 489 S.E.2d 323 (1997).

Although a borrower failed to obtain the state court's leave before filing a third amended complaint, as required by O.C.G.A. § 9-11-21, the amended complaint was not ineffective to add a non-diverse attorney and law firm, and the federal district court was able to consider the attorney and law firm in determining the existence of diversity jurisdiction for purposes of the borrower's motion for remand under 28 U.S.C. § 1447; because the attorney and law firm were substituted for John Does named in the original complaint, O.C.G.A. § 9-11-21 did not apply; rather, O.C.G.A. § 9-11-15(c), which allowed for the substitution by amendment of a John Doe without the state court's leave applied. Peachtree/Stratford, L.P. v. Phoenix Home Life Ins. Co., F. Supp. 2d (N.D. Ga. May 2, 2006).

Parties may be dropped or added by order of court, on motion of any party or of the court's own initiative, at any stage of the action and on such terms as are just. This includes appeal. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978); Zappa v. Automotive Precision Mach., Inc., 205 Ga. App. 584, 423 S.E.2d 286 (1992); Altama Delta Corp. v. Howell, 225 Ga. App. 78, 483 S.E.2d 127 (1997).

In order for an additional party to be added to an existing suit by amendment pursuant to O.C.G.A. § 9-11-15, leave of court must first be sought and obtained pursuant to O.C.G.A. § 9-11-21. Among the factors to be considered by the trial court in determining whether to allow the amendment are whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. Aircraft Radio Systems, Inc. v. Von Schlegell, 168 Ga. App. 109, 308 S.E.2d 211 (1983).

O.C.G.A. § 9-11-21 permits the court to add parties on the court's own initiative, and this may be done at any stage in the proceedings. Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 371 S.E.2d 421 (1988).

- Leave of the court was not required to add a second defendant to the amended complaint because no suit or action was pending at the time the complaint was amended because no complaint had been served. Northwest Georgia Contracting, LLC v. St. Germain, 350 Ga. App. 568, 829 S.E.2d 814 (2019).

Misjoinder of parties may be cured by amendment, by dropping or adding parties on motion of any party or on the court's own motion. McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974).

Adding or dropping of parties requires exercise of discretion by the court. Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973); Cartin v. Boles, 155 Ga. App. 248, 270 S.E.2d 799 (1980).

When the court had not approved the dropping of certain defendants in a multi-party case before other defendants filed amendments to their answer asserting cross-claims against the former, the trial court erred by finding that the case had been dismissed as to the former defendants before the cross-claims were filed. Manning v. Robertson, 223 Ga. App. 139, 476 S.E.2d 889 (1996)overruling Smithloff v. Benson, 173 Ga. App. 870, 328 S.E.2d 759 (1985).

Plaintiff's attempted dismissal of one defendant was ineffective in the absence of a ruling by the trial court. Flemister v. Hopko, 230 Ga. App. 93, 495 S.E.2d 342 (1998).

- Plaintiff may add a new party or change the status of one who is a third-party defendant by making one a party to the original complaint only by leave of court. Robinson v. Bomar, 122 Ga. App. 564, 177 S.E.2d 815 (1970), overruled on other grounds, Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).

Plaintiff must obtain leave of court for filing an amendment seeking to make a new party defendant, and obtain an order to that effect. Pascoe Steel Corp. v. Turner County Bd. of Educ., 139 Ga. App. 87, 227 S.E.2d 887 (1976).

Trial court's denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 9-2-61, but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-11-15(a) and9-11-21; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642 (2006).

Marketing network properly removed the distributors' action under 28 U.S.C. §§ 1332 and 1441 because the case was not removable until a first amended complaint was filed adding substantially different claims and causing the likely amount in controversy to surpass the jurisdictional amount. Thus, removal was timely under 28 U.S.C. § 1446(b), and the adding of a non-diverse distributor as plaintiff was improper without a court order pursuant to O.C.G.A. §§ 9-11-15 and9-11-21, making the matter completely diverse. Campbell v. Quixtar, Inc., F. Supp. 2d (N.D. Ga. June 13, 2008).

Because the claimants never sought leave of court to add a former county commissioner as a party in the commissioner's individual capacity, any unilateral attempt by the claimants to amend the claimants' complaint in this regard through allegations in an appellate brief was ineffective under O.C.G.A. §§ 9-11-15 and9-11-21. Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011).

Trial court properly dismissed certain parties because no motion was filed pursuant to O.C.G.A. §§ 9-11-15 and9-11-21 to add the parties and no leave of court was granted to add the parties. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).

Trial court abuses the court's discretion to add a party if the party denies the addition of a party based on delay alone. Shiver v. Norfolk-Southern Ry., 220 Ga. App. 483, 469 S.E.2d 769 (1996).

Because no mistake as to identity was demonstrated and since neither of two defendants was added prior to the expiration of the statute of limitation for malpractice, the trial court did not abuse the court's discretion in denying the motion to add parties or in denying reconsideration of that motion. Deleo v. Mid-Towne Home Infusion, Inc., 244 Ga. App. 683, 536 S.E.2d 569 (2000).

- In an automobile collision case, the plaintiff's motion to add a party was not moot because the trial court should have applied the standard for misjoinder and nonjoinder of parties; the plaintiff sought to add the alleged vehicle owner as the plaintiff's allegations could have some basis as it appeared that the vehicle's owner was the proper party and that if the unknown driver was a family member the plaintiff conceivably could have a claim under the family purpose doctrine against the vehicle's owner; and the fact that the vehicle's owner might be considered a joint tortfeasor with the unknown driver did not mean that the plaintiff was not authorized to sue the joint tortfeasor that the plaintiff wished to sue. Doby v. Bivins, 341 Ga. App. 757, 802 S.E.2d 683 (2017).

Trial court erred by denying the defendant's motion to open the default judgment against the defendant under O.C.G.A. § 9-11-55(b) because the amendment to add defendant was ineffective for failure to obtain leave of court and since the defendant was not named as a party to the action, the defendant was not required to file an answer; thus, the defendant plainly had a reasonable excuse for failing to answer timely. La Mara X, Inc. v. Baden, 340 Ga. App. 592, 798 S.E.2d 105 (2017).

- Trial court did not abuse the court's discretion in granting plaintiffs' eleventh-hour motion to amend and add the defendant as a party. Little Tree, Inc. v. Fields, 240 Ga. App. 12, 522 S.E.2d 509 (1999).

Plaintiffs' motion to add the decedent's widow as a plaintiff in the wrongful death action was improperly denied as the plaintiff's motion met the relation-back requirements because the proposed amendment would not have altered the substance of the wrongful death claim or changed the underlying circumstances set forth in the original complaint; the widow's claim clearly arose out of the same occurrence as that alleged in the original complaint; there was no evidence of prejudice to the defendants or dilatory tactics by the plaintiffs as the original complaint was filed within the applicable statute of limitation; and, although the widow initially did not want to participate in the lawsuit, later the widow's mind was changed. Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 837 S.E.2d 529 (2020).

- In an injured party's direct action against an insurer, because the injured party failed to seek leave of court to add the insurer's insured as a party, and the relation back doctrine did not apply, the insurer and the insured were properly dismissed from the injured party's lawsuit. Crane v. State Farm Ins. Co., 278 Ga. App. 655, 629 S.E.2d 424, cert. denied, 2006 Ga. LEXIS 544 (2006).

In an action for declaratory judgment filed by co-administrators and another against an individual who made a claim against an estate, the co-administrators' motion to add three new defendants was properly denied. Granting the motion would result in prejudice to the potential new defendants, who were not related to the individual and who had no reason to know that the defendants would be brought in as parties to the action; moreover, the co-administrators had been aware of the three and the potential claims against those three for many months. Ellison v. Hill, 288 Ga. App. 415, 654 S.E.2d 158 (2007), cert. denied, 2008 Ga. LEXIS 282 (Ga. 2008).

In a suit by appellants, a company and the company's president, against a law firm, the trial court properly denied a motion to add a partner as a party defendant under O.C.G.A. §§ 9-11-15(c) and9-11-21 when the appellants claimed that the partner had violated the attorney-client privilege. Appellants did not assert that the partner ever personally represented the appellants or any related entities; accordingly, any attorney-privilege implicated in the fax would be that between the appellants and the law firm, and not between the appellants and the partner individually. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008).

Trial court did not abuse the court's discretion by denying a plaintiff's motion for leave to amend the complaint to substitute parties under O.C.G.A. § 9-11-21 as the plaintiff did not offer an acceptable excuse or justification for failing to name the proper parties that would warrant the conclusion that the trial court ruled inappropriately. Riding v. Ellis, 297 Ga. App. 740, 678 S.E.2d 178 (2009).

Trial court did not err in denying a motion to substitute parties made by plaintiffs in their negligence suit against a defendant for fire damage because the plaintiffs had known of the existence and potential liability of the corporation the plaintiffs sought to add as a party for more than five years, and the statute of limitations had run. Barrs v. Acree, 302 Ga. App. 521, 691 S.E.2d 575 (2010).

Medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), prevented a plaintiff from amending the complaint in a pending medical malpractice action to add an individual party defendant more than five years after alleged negligence because, at that point, the plaintiff's cause of action against that particular defendant no longer existed. Preferred Women's Healthcare, LLC v. Sain, 348 Ga. App. 481, 823 S.E.2d 569 (2019), cert. denied, No. S19C0773, 2019 Ga. LEXIS 687 (Ga. 2019).

Trial court erred in denying a hospital's motion to dismiss an amended complaint because the complaint was filed outside the statute of limitations, O.C.G.A. § 9-3-71(a); the complaint did not relate back to the filing of the original complaint because there was no evidence that the hospital received timely notice of the action as required by O.C.G.A. § 9-11-15(c). St. Francis Health, LLC v. Weng, 354 Ga. App. 310, 840 S.E.2d 712 (2020).

- Intervention involves not a mistake in pleading but the injection of a third person uncontrolled by the parties; should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, the ability to raise these matters would be controlled by O.C.G.A. §§ 9-11-15(c) and9-11-21. AC Corp. v. Myree, 221 Ga. App. 513, 471 S.E.2d 922 (1996).

- Trial court abused the court's discretion by denying the state's motion to amend the complaint to add proposed defendants as parties because a 20 year statute of limitation applied to payday lending litigation as brought by the state, and the state carried the state's burden of demonstrating that the proposed defendants will not be unfairly prejudiced by their addition as parties since the parties were closely related to the lenders already named and the interlocutory orders already entered did not apply to the lenders. W. Sky Fin., LLC v. State of Ga. ex rel. Olens, 300 Ga. 340, 793 S.E.2d 357 (2016).

Motion to add or drop parties must be timely; otherwise, there is no abuse of discretion to deny the motion. Cartin v. Boles, 155 Ga. App. 248, 270 S.E.2d 799 (1980).

Reasonable opportunity should be given to add any essential party in a case before that case is dismissed with prejudice for nonjoinder. Gray v. Hall, 233 Ga. 244, 210 S.E.2d 766 (1974).

Statute does not require that proposed new party be given notice of hearing to rule on motion for addition of such party. Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973).

Since statute of limitation had not run at the time plaintiffs filed the plaintiffs' first amendments adding a new party defendant it was within the trial court's discretion to grant later motions to amend, although filed after the statute of limitations had run, and have the amendments relate back to the date the original complaints were filed since the occurrence, conduct, or transaction in the original pleadings were the same as that set forth in the amendments; the added party would not be prejudiced in maintaining its defense on the merits; and the added party knew or should have known that the actions would have been brought against it. Bil-Jax, Inc. v. Scott, 183 Ga. App. 516, 359 S.E.2d 362, cert. denied, 183 Ga. App. 905, 359 S.E.2d 362 (1987).

- Construing the pertinent provisions of O.C.G.A. §§ 9-11-7,9-11-8,9-11-12,9-11-15, and9-11-21 in pari materia, it is clear that the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, authorizes the addition of parties, by order of the court, and that an "amended complaint" effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Chan v. W-East Trading Corp., 199 Ga. App. 76, 403 S.E.2d 840, cert. denied, 199 Ga. App. 905, 403 S.E.2d 840 (1991).

- Claim did not remain pending after the plaintiff filed a voluntary dismissal without prejudice under O.C.G.A. § 9-11-41, although the party failed to move the court to drop the party pursuant to O.C.G.A. § 9-11-21. Smith v. Memorial Medical Ctr., Inc., 208 Ga. App. 26, 430 S.E.2d 57 (1993).

Minor appellants who dropped out of an action, thereby dismissing the only claims the appellants had, took a voluntary dismissal of their actions which was effective without court order pursuant to O.C.G.A. § 9-11-41(a), rather than a dropping of parties requiring a court order pursuant to O.C.G.A. § 9-11-21 and thus their attempt to reinstate their actions could have been dismissed. Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).

Plaintiff's renewal action brought under the renewal statute, O.C.G.A. § 9-2-61(a), was timely because the six-month period was calculated not from the time the plaintiff dismissed some of the defendants, but from the date of the trial court's order granting the voluntary dismissal without prejudice as to all but one of the defendants. Had the plaintiff dismissed all the defendants, no court order would have been required, and the voluntary dismissal would have been effective. Gresham v. Harris, 329 Ga. App. 465, 765 S.E.2d 400 (2014).

- Although personal injury plaintiff never sought leave of court to add defendants, the trial court's denial of patron-defendant's motion for summary judgment, made on the ground that no motion for leave to amend was filed, amounted to an implicit approval of plaintiff's amendment. Good Ol' Days Downtown, Inc. v. Yancey, 209 Ga. App. 696, 434 S.E.2d 740 (1993).

- When plaintiffs, a worker and his wife, sued defendants, the owner, designer, and builder of a staircase and platform which fell on the worker, for personal injuries, and intervenors, the worker's employer and its insurer, intervened to enforce a subrogation lien, the trial court did not abuse the court's discretion by giving the court's approval under O.C.G.A. § 9-11-21 to the plaintiffs' dismissals of the builder and the designer over the intervenors' objections after the plaintiffs settled with the builder and the designer because, although O.C.G.A. § 34-9-11.1(b) gave the employer and the insurer the right to intervene to enforce a subrogation lien, the statute did not allow them to take away plaintiffs' power to direct their own lawsuit against the defendants or to settle with one or more of the defendants. Int'l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga. App. 752, 569 S.E.2d 865 (2002).

Trial court did not err in not voluntarily dismissing the motorist and the passenger's action, initially against the second possible driver and then against the first possible driver, as a motion to dismiss less than all the parties from an action, even while the case was on appeal, required that such action be done by order of the court, and the motorist and the passenger did not obtain such an order that would have made the attempted voluntary dismissals effective; accordingly, the first possible motorist and second possible motorist's appeal of the denial of their summary judgment motion was not moot. Rosales v. Davis, 260 Ga. App. 709, 580 S.E.2d 662 (2003).

- Trial court erred in concluding that the filing of a duplicate complaint was an amendment to add a new party requiring the purchaser to file a motion under O.C.G.A. § 9-11-21 of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, because the filing was not an amendment adding the home inspector as a party to the lawsuit; the inspector was named a defendant in the original filing and, at most, the duplicate filing was a vehicle for obtaining a summons for the home inspector. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011).

Misnomers

Correction of misnomer.

- When the real defendant has been properly served, the plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint; correction of a misnomer involves no substitution of parties and does not add a new and distinct party. London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 212 S.E.2d 21 (1975).

Erroneous name of defendant may be amended to correct the defendant's name, even after the statute of limitations has run. London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 212 S.E.2d 21 (1975).

Allowing the substitution of a corporation's correct name was not an abuse of discretion when opposing parties showed no harm to themselves. Kelley v. R S & H of N.C., Inc., 197 Ga. App. 236, 398 S.E.2d 213 (1990).

Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. Abbott v. Gill, 197 Ga. App. 245, 398 S.E.2d 225 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

- 42 Am. Jur. 2d, Injunctions, § 225. 59 Am. Jur. 2d, Parties, §§ 124 et seq., 371 et seq., 382 et seq. 75 Am. Jur. 2d, Trial, §§ 92, 93.

- 35A C.J.S., Federal Civil Procedure, § 205 et seq. 35B C.J.S., Federal Civil Procedure, §§ 802, 823. 67A C.J.S., Parties, § 143 et seq.

- Joinder, in one action at law, of persons not jointly liable, one or the other of whom is liable to the plaintiff, 41 A.L.R. 1223.

Appealability of order sustaining demurrer, or its equivalent, to complaint on ground of misjoinder or nonjoinder of parties or misjoinder of causes of action, 56 A.L.R.2d 1238.

Propriety of consideration of, and disposition as to, third persons' property claims in divorce litigation, 63 A.L.R.3d 373.

Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - products liability cases, 93 A.L.R.6th 463.

Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - wrongful death cases, 94 A.L.R.6th 111.

Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - medical malpractice cases against physicians and other individual health care providers, 95 A.L.R.6th 85.

Construction and application of fraudulent misjoinder exception to complete diversity rule, 65 A.L.R. Fed. 2d 527.