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Rasheed v. Klopp Enterprises10/25/2005
g rink and mistakenly sued similarly-named related corporation).
Finally, we do not find any undue delay or laches in the Rasheeds' attempts to add Easy T.V. to the case.
Laches requires more than the passage of time; laches also requires prejudice arising from that passage of time; and when the original defendant and the defendant which plaintiff proposes to add by amendment are intertwined corporations which both have received notice of an action before the expiration of the statute of limitation, the prejudice that might otherwise exist is negated.
(Citations omitted.) Fontaine v. Home Depot, 250 Ga. App. at 126 (1). The record demonstrates that the Rasheeds attempted to add Easy T.V. as a party by amendment filed 11 months after the original complaint. See Parks v. Hyundai Motor America, Inc., 258 Ga. App. at 883 (3) (13-month delay); Little Tree, Inc. v. Fields, 240 Ga. App. 12, 13-14 (1) (522 SE2d 509) (1999) (18-month delay); Shiver v. Norfolk-Southern Ry. Co., 220 Ga. App. at 485 (three-year delay).
Because the Rasheeds' motion to amend conforms to the requirements of OCGA § 9-11-15 (c) and is not prejudicial, the trial court abused its discretion in denying the Rasheeds' motion for leave to amend their complaint to add Easy T.V. as a party defendant. Fontaine v. Home Depot, 250 Ga. App. at 126-127 (1). Accordingly, we direct the trial court to enter an order granting the Rasheeds' motion to amend the complaint to add Easy T.V. as a party defendant, with the date of service relating back to the date of service on Klopp. Id.; Shiver v. Norfolk-Southern Ry. Co., 220 Ga. App. at 485.
2. The Rasheeds contend material questions of fact remain regarding "whether Klopp and Easy T.V. are intertwined entities" and, therefore, the trial court erred in granting Klopp's motion for summary judgment. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." (Citation and emphasis omitted.) Lau's Corp., Inc. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). "On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party." (Citation and punctuation omitted.) Pirkle v. Robson Crossing LLC, 272 Ga. App. 259 (612 SE2d 83) (2005).
In their amended complaint, the Rasheeds alleged that Fielding was an employee of Klopp and Easy T.V. and that Klopp and Easy T.V. are vicariously liable for Fielding's negligent acts, committed in the scope of his employment. Nowhere in the complaint do the Rasheeds contend that Klopp should be held liable for the debts of Easy T.V. on the basis that the corporations' common owner disregarded the corporate form, that is, under a theory of "piercing the corporate veil."
Because the Rasheeds sued Klopp and Easy T.V., alleging vicarious liability for the acts of an employee, and because there is no evidence in the record that Fielding was Klopp's employee, the trial court correctly granted Klopp's motion for summary judgment. Hargett's Telephone Contractors, Inc. v. McKeehan, 228 Ga. App. 168, 171 (491 SE2d 391) (1997). See also Johnson v. Webb-Crawford Co., 89 Ga. App. 524, 528-529 (80 SE2d 63) (1954) (directed verdict proper in absence of evidence driver of vehicle was employed by defendant).
Judgment reversed in part; affirmed in part. Smith, P. J., and Adams, J., con
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