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Smith v. Vencare Inc.6/23/1999
aintiff in his amendment justified the delay by asserting that these unknown parties were identified through discovery. Therefore, leave of the trial court is not necessary to make such amendment, and the amendment becomes effective when filed. After such amendment has been made, the trial court shall determine if the conditions of OCGA § 9-11-15 (c) allow the amendment to relate back where the statute of limitations has run on a theory of recovery. Bishop v. Farhat, 227 Ga. App. 201, 202-203 (1) (489 SE2d 323) (1997). Since no order to add such parties was necessary, then the denial of the right to add the additional parties will be treated as a dismissal after the trial court has made such determination that there should be no relation back. OCGA § 9-11-15 (c); Bishop v. Farhat, supra at 202-203.
The statute of limitations for slander as an injury to reputation is one year; however, a tortuous act that involves loss of consortium is four years from the accrual of the right of action. OCGA § 9-3-33. Thus, an action for slander against either Skip Wright or Glenda Ward is barred, but for the relation back to filing. See OCGA § 9-11-15 (c); Hill v. Crabb, 166 Ga. App. 387, 388 (304 SE2d 510) (1983); Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (3) (269 SE2d 867) (1980). Such additional defendants' rights to defend on the merits would be impaired for such claim relating back where they were not on actual notice of the pendency of such action prior to the running of the statute of limitations, and it has not been shown that they should have known, but for an error, that they would have been named as defendants. See Sargent v. Dept. of Human Res., 202 Ga. App. 874, 874-875 (415 SE2d 918) (1992). The evidence does not support the relation back after the statute has run, and the trial court did not err in dismissing the action for slander against them. OCGA § 9-11-15 (c); Robinson v. Piggly Wiggly of Calhoun, Inc., supra at 675; Trillium Nursing Home, Inc. v. Thebaut, supra at 411; Rich's, Inc. v. Snyder, supra at 889. Notice of the incident does not satisfy the requirement that there be notice of the suit prior to the running of the statute. Hall v. Hatcher Sales Co., 149 Ga. App. 133, 134 (1) (253 SE2d 812) (1979).
However, any action against them for tortiously causing a loss of consortium was asserted by amendment within the four year period from the date that the action accrued on April 20, 1995, and was not barred. Their rights to defend on the merits were not prejudiced by their joinder. See Central of Ga. R. Co. v. Harbin, 132 Ga. App. 65, 65-66 (207 SE2d 597) (1974); Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 609 (3) (197 SE2d 416) (1973). Therefore, the trial court committed plain error in dismissing the action against them for loss of consortium by denying the joinder. The order denying joinder as to Ward and Wright is hereby vacated as to the tortious interference with plaintiff's right of consortium.
Judgment affirmed in part and reversed in part, and case remanded with directions. Pope, P. J., concurs. Smith, J., specially concurs.
A99A0414. SMITH v. VENCARE, INC. d/b/a VENCOR
HOSPITAL
SMITH, Judge, Concurring specially.
I concur in the result reached in each of the divisions of the majority opinion and in the judgment, but I do not agree with all that is said in Divisions 2 and 3. Because I believe that they contain much that is not necessary to the analysis, I cannot concur fully and must concur in the judgment only as to those divisions.
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