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Khawaja v. Lane Co.5/18/1999
In the Court of Appeals of Georgia
SM-016
These companion appeals arise out of the trial court's grant of summary judgment to Realty Management Corporation and to Summercourt Properties, L.P. in a personal injury action filed by Nazir Khawaja. Finding no error, we affirm.
On November 7, 1997, just before the two year statute of limitations would have barred his action for personal injuries, Khawaja filed a complaint against Lane Company Inc. for injuries he allegedly sustained on November 8, 1995. See OCGA § 9-3-33. On November 10, 1997, a special process server served this defendant. It also appears that Angela Sanders, a receptionist for Realty Management Corporation, d/b/a Lane Company, was served by special process server with the complaint on November 17, 1997. An answer was then filed by Realty Management Corp., d/b/a Lane Company (Realty Management) raising insufficiency of service of process as a defense. Approximately three months later, Khawaja filed a "motion to amend complaint," seeking to add Summercourt Properties, LP, allegedly the record title holder of the property on which Khawaja was injured. He also filed a document captioned, "amendment for misnomer," reciting that " he name Realty Management Corp. d/b/a Lane Company should be substituted in lieu of Lane Company, Inc."
On the same day Khawaja filed these pleadings, without permitting any response by the parties sought to be added, the trial court entered orders granting the motion to amend to add Summercourt Properties and permitting substitution of Realty Management in place of Lane Company, Inc. Apparently unaware that the trial court had entered these orders, Realty Management responded to Khawaja's motions and subsequently moved for summary judgment on the ground that Khawaja failed to comply with the requirements of OCGA § 9-11-15 (c) concerning amendment of a pleading to change the party against whom a claim is asserted after the statute of limitations has run. After moving for summary judgment, Realty Management moved for reconsideration of the trial court's orders permitting amendment and substitution.
Without expressly ruling on the motion for reconsideration, the trial court granted summary judgment to Realty Management, concluding that Realty Management was never added as a proper party. The court stated that although it "entered an order to purportedly correct the 'misnomer,' . . . of Lane Company, Inc. to Realty Management Corporation d/b/a Lane Company, this is not a misnomer case." The court further concluded that Khawaja erroneously failed to seek leave to amend the complaint and failed to comply with OCGA § 9-11-15 (c). After the trial court granted summary judgment to Realty Management, Summercourt Properties moved for summary judgment, and the trial court granted the motion for the same reasons it granted Realty Management's motion.
1. In Case Number A99A0068, Khawaja appeals the grant of summary judgment to Realty Management. He first argues that the trial court erred in concluding that Realty Management was never made a proper party. He points out that the trial court never ruled on Realty Management's motion for reconsideration concerning the substitution and amendment of the complaint, and he argues that the trial court never "reversed, amended, changed, overruled or otherwise altered" its order "placing Realty Management . . . into the case." For these reasons, he contends Realty Management was added as a proper party defendant. We do not agree. In its order granting Realty Management's motion for summary judgment, entered after its order concerning Khawaja's pleading entitled "amendment for misnomer," the trial court altered its earlier order
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