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Green v. Central State Hospital9/9/2005
CGA § 9-10-132 "cannot state a new cause of action or introduce a new party to the suit." "The correction of a misnomer applies only when there is no change of parties and does not add a new and distinct party, which had not been previously served in the case." The amendment sought to add the Board and MCG; they were new and distinct parties who had not been served with process. The trial court correctly denied the motion.
Plaintiffs contend, however, that the amendment was proper insofar as it sought to add the Board and MCG as defendants because plaintiff had fulfilled the requirements of OCGA § 9-11-15 (c). According to that Code section,
An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings . . . 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.
In this case, the amendment was filed on May 23, 2003, long after the two-year statute of limitation expired. However, plaintiffs argue that the Board and MCG had knowledge of the claim as Rogers and the GDOC had been served with the lawsuit. Plaintiffs also claim that the Board and MCG should have known that but for the mistake in identifying them as the proper defendants, they would have been named in light of their employment of Rogers. Consequently, plaintiffs allege that the amendment relates back to the filing of the complaint. These arguments are misplaced.
" nder the plain wording of OCGA § 9-11-15 (c), the defendant sought to be added must have actual notice of the institution of the action, not merely notice of the incidents giving rise to the litigation." As the movant for summary judgment, appellees had the burden of showing that the parties sought to be added by amendment did not have actual notice of the lawsuit itself prior to the running of the statute of limitation. As for the Board, appellees sustained this burden by tendering the affidavit of the Board's associate vice- chancellor of legal affairs, which shows that the Board never received either a notice of claim or service of a lawsuit in accordance with OCGA § 50-21-35. As for MCG, appellees were not required to show lack of notice because MCG would not have been a proper party. As plaintiffs conceded, Rogers and the medical staff at the Prison were employed by the Board, which would have been the only proper party under OCGA § 50- 21-25 (b). It follows that the trial court did not abuse its discretion in denying the amendment pursuant to OCGA § 9-11-15.
4. Our holding in Divisions 1 through 3 makes it unnecessary to consider plaintiffs' remaining enumeration of error.
Judgment affirmed. Andrews, P. J., and Phipps, J., concur.
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