Rockdale Body Shop, Inc

v. Thompson, 222 Ga. App. 821, 476 S.E.2d 22 (1996). Issue of actual damages, having been litigated by the implied consent of the parties, was not foreclosed because of its absence from the complaint. Conner v. Conner, 269 Ga. 112, 499 S.E.2d 54 (1998). Application of subsection (b). — Subsection (b) of O.C.G.A. § 9-11-15 applies when issues not raised by the pleadings are tried by express or implied consent of the parties. Borenstein v. Blumenfeld, 250 Ga. 606, 299 S.E.2d 727 (1983). Guardian of the property testified that the guardian was in court to explain to the court what the documentation in the court file showed had occurred, to explain further with some facts that were not in the file, and to respond to the answer of the guardian ad litem; the guardian testified about the grounds for the guardian’s revo- 9-11-15 cation, later considered by the court in the court’s revocation order, and it followed that the guardian expressly or by implication consented to the consideration of those grounds in the order revoking the guardian’s letters. In re Longino, 281 Ga. App. 599, 636 S.E.2d 683 (2006), cert. denied, 2007 Ga. LEXIS 92 (Ga. 2007). Beneficiaries of a will sued the decedent’s grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent’s estate. The grandchild’s claim that fraud had not been pled or proven was unavailing as the trial court amended the pleadings under O.C.G.A. § 9-11-15(b) to conform to the evidence and charged the jury on fraud; and the jury found by special verdict that the grandchild, with intent to commit fraud, converted the stock. Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008). Subsection (b) is not permissive in terms: the subsection provides that issues tried by express or implied consent shall be treated as if raised by the pleadings. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978). Construction of § 9-11-16 in light of subsection (b) of this section. — Ga. L. 1968, p. 1104, § 5 (see now O.C.G.A. § 9-11-16), relating to pretrial procedure, must always be considered in light of the mandatory provisions of subsection (b) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15), and the test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend and offer evidence or was misled. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980). Subsection (b) does not overlap with § 9-11-60. — Subsection (b) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15) concerns only amendments to conform to the evidence, and in no respect overlaps with Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60(d)), relating to relief from judgments. Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976). Subsection (b) is applicable to defenses as well as to claims, and to the extent to which the subsection applies, the 323 Amendments to Conform to Evidence (Cont’d) subsection operates as an exception to the rule that defenses not pled are waived. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978). Evidence supporting affirmative defense. — Subsection (b) of O.C.G.A. § 9-11-15 provides that, at trial, the pleadings are deemed automatically amended to conform to the evidence that has been admitted without objection; therefore, an affirmative defense may be asserted for the first time at trial. Brackett v. Cartwright, 231 Ga. App. 536, 499 S.E.2d 905 (1998). ‘‘Prejudice,’’ under subsection (b), means undue difficulty in prosecuting a law suit, as a result of a change of tactics or theories on the part of the other party. Munsford Co. v. Klingenberg, 138 Ga. App. 791, 227 S.E.2d 507 (1976). Evidence received without objection amends pleadings by operation of law. McLendon Elec. Co. v. McDonough Constr. Co., 149 Ga. App. 115, 253 S.E.2d 772 (1979); Sambo’s of Ga., Inc. v. First Am. Nat’l Bank, 152 Ga. App. 899, 264 S.E.2d 330 (1980). Trial court did not err by granting the former husband reimbursement of pension benefits despite the former husband’s failure to request that relief in the pleadings; pursuant to O.C.G.A. § 9-11-15(b), the issue was treated as if the issue had been raised because the former wife permitted the issue to be litigated without objection. Howington v. Howington, 281 Ga. 242, 637 S.E.2d 389 (2006). Formal pleading of defenses unnecessary when tried by consent. — Fact that a defense, even an affirmative defense, has not been formally pled is immaterial if the issue was tried by express or implied consent; lack of an amendment does not affect the judgment in any way. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978). In a suit on a promissory note, the trial court did not err by considering the affirmative defense of failure of consideration, which the maker had not pled, since the payee failed to object when the maker’s counsel argued failure of consideration in 9-11-15 the maker’s opening statement and in the maker’s motion for directed verdict; this issue was thus tried by the implied consent of the parties under O.C.G.A. § 9-11-15(b). Drake v. Wallace, 259 Ga. App. 111, 576 S.E.2d 87 (2003). Issues tried by consent are treated as if pled. — If an issue not raised by the pleadings is tried by express or implied consent, it is to be treated as if made by the pleadings. Iowa Sheet Metal Contractors v. Jenkins, 119 Ga. App. 162, 166 S.E.2d 599 (1969). Construction of pleading to uphold verdict. — Absent amendment, when no objection is interposed, pleading will be considered to have been amended so as to uphold the verdict. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972). Counterclaim not automatically amended to conform to evidence. — Provisions of O.C.G.A. § 9-11-15 will not operate to amend automatically a counterclaim to conform to evidence introduced in a deposition taken during the discovery process and prior to trial. Feely v. First Am. Bank, 206 Ga. App. 53, 424 S.E.2d 345 (1992). Pleadings not amended by evidence absent litigation of issue and opportunity to defend. — Provisions of the Civil Practice Act (see nw O.C.G.A. Ch. 11, T. 9) respecting amendment of pleadings by introduction of evidence and grant of relief in accordance with such evidence have no application when propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief. Cross v. Cross, 230 Ga. 91, 195 S.E.2d 439 (1973). Withdrawal of admission by amendment of pleadings. — In an action against a negligent driver’s father, the father’s initial admission that the vehicle was a family purpose vehicle was made regarding a legal opinion, i.e., agency under the family purpose doctrine, and, therefore, it could not be an admission in judicio or an admission against interest because it was a legal opinion or conclusion that had been withdrawn by amendment from the pleadings. Wahnschaff v. Erdman, 232 Ga. 77, 502 S.E.2d 246 (1998). It was incumbent upon the plaintiff to put the defendant on notice prior to 324 the close of evidence of the plaintiff ’s contention that an additional issue was being placed before the jury for resolution. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975). Whether issue has been tried by implied consent is a question of fact, and a decision on this question is generally considered to be within the sound discretion of the trial court. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975); Andean Motor Co. v. Mulkey, 251 Ga. 32, 302 S.E.2d 550 (1983). Implied consent usually is found when one party raises an issue material to the other party’s case, or when evidence is introduced without objection. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978); Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980); All Risk Ins. Agency, Inc. v. Southern Bell Tel. & Tel. Co., 182 Ga. App. 190, 355 S.E.2d 465 (1987); McCollum v. Doe, 190 Ga. App. 444, 379 S.E.2d 233 (1989); Mortgage Sav. Co. v. KKFB Inv. Co., 196 Ga. App. 283, 396 S.E.2d 16 (1990); Bowers v. Howell, 203 Ga. App. 636, 417 S.E.2d 392 (1992). Consent not implied absent indication of new issue. — When evidence claimed to show that an issue was tried by consent was relevant to an issue already in the case as well as to the issue that was the subject matter of the amendment, and there was no indication at trial that the party who introduced the evidence was seeking to raise a new issue, pleadings would not be deemed amended under subsection (b) of this section. Smith v. Smith, 235 Ga. 109, 218 S.E.2d 843 (1975). When the evidence offered is relevant to an issue before the court, consent to an amendment of the pleadings will not be implied absent a clear indication that the party introducing the evidence was attempting to raise a new issue. Southern Disct. Co. v. Kirkland, 181 Ga. App. 263, 351 S.E.2d 685 (1986). When the defendant argued that the pleadings should be amended to set forth failure of consideration and breach of warranty issues, and insisted that the issues were tried with implied consent, but did not argue that the pleadings should be amended in the interest of justice even 9-11-15 though the plaintiff objected to the failure of consideration and breach of warranty evidence, the defendant would not be heard on appeal to argue that the trial court should have granted the written motion to amend the pleadings in spite of the plaintiff ’s objection to the failure of consideration and breach of warranty evidence. Avery v. Chrysler Credit Corp., 194 Ga. App. 682, 391 S.E.2d 410, cert. denied, 194 Ga. App. 911, 391 S.E.2d 410 (1990). Trial court did not err by prohibiting a former insurance agent from presenting to the jury a claim of slander per se with respect to statements made by a competing insurance agent in front of the former insurance agent’s home and before the former insurance agent’s spouse as the complaint did not claim as a separate basis for recovery the statements made at the house, rather, it only addressed statements purportedly made to customers. Thus, the trial court was authorized to find that the issue was not tried by the implied consent of the parties since the competing insurance agent had no notice of such allegations and, therefore, the trial court did not abuse the court’s discretion by disallowing the statements from being presented to the jury as a separate claim of slander per se. Am. Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 660 S.E.2d 810 (2008), cert. denied, No. S08C1555, 2008 Ga. LEXIS 680 (Ga. 2008). If adverse party objects, new claims should not be considered. — When defendants made a clear objection to admission of evidence of additional claims, not raised in the pleadings, such claims were not tried with the defendants express or implied consent, and absent an amendment to the pleadings, the court was not authorized to admit evidence or enter judgment for claims based on such evidence. Burger King Corp. v. Garrick, 149 Ga. App. 186, 253 S.E.2d 852 (1979); Bland v. Graham, 249 Ga. App. 856, 549 S.E.2d 809 (2001). Consent not implied by adverse party’s absence from trial. — Consent to introduce evidence relating to a party and cause of action not within the framework of the lawsuit cannot be implied from the absence of the other party on the 325 Amendments to Conform to Evidence (Cont’d) trial of the case. Burgess v. Nabers, 122 Ga. App. 445, 177 S.E.2d 266 (1970). Amendment permitted absent prejudice to objecting party. — Defendant was properly permitted, over the plaintiff ’s repeated objections, to introduce evidence of certain expenses not specifically included in the defendant’s counterclaim when the plaintiff did not satisfy the trial court that admission of the evidence would prejudice the plaintiff. Kim v. McCullom, 222 Ga. App. 439, 474 S.E.2d 654 (1996). When an issue is raised by evidence, charge on subject is authorized, notwithstanding failure of the pleadings to present such issue. Sligh v. Western Elec. Co., 152 Ga. App. 80, 262 S.E.2d 245 (1979). Amendments may be filed to conform to the evidence, even though the amendments technically change the theory of the cause of action. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972). Pleading may be amended after judgment only insofar as to make the pleading conform to the evidence. Buffington v. Nalley Disct. Co., 117 Ga. App. 820, 162 S.E.2d 212 (1968). Plaintiff not required to amend in every case. — Fact that this section contains liberal provisions making it possible to amend pleadings during the course of trial does not require the plaintiff to so amend in every case in which the plaintiff might do so. Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 213 S.E.2d 909 (1975). Failure to amend does not affect result of trial. — While amendments to conform to the evidence are authorized, failure to amend does not affect result of the trial of an issue not made specifically by the pleadings. Iowa Sheet Metal Contractors v. Jenkins, 119 Ga. App. 162, 166 S.E.2d 599 (1969). Verdict and judgment supported by evidence will stand. — Notwithstanding mandate of subsection (b) of this section to amend the pleadings to conform to the evidence, if the verdict and judgment 9-11-15 are supported by evidence received without objection, the verdict and judgment will stand even without amendment. Jolly v. Jolly, 137 Ga. App. 625, 224 S.E.2d 807 (1976). Amendment jeopardizing or overthrowing judgment not authorized. — Party cannot shift ground and try a new theory of recovery through a proposed amendment, effect of which would be not to conform the pleadings to a judgment the party had won, but to jeopardize and perhaps overthrow a judgment the party has lost; the dividing line is drawn between this use of amendment and those uses aimed at conformity. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974). Irrelevant testimony need not be admitted. — While the trial court is permitted to admit evidence by allowing pleadings to be amended, and may grant a continuance to enable the objecting party an opportunity to prepare a defense, this section does not require the court to admit testimony that is irrelevant and outside the pleadings. Madaris v. Madaris, 224 Ga. 577, 163 S.E.2d 745 (1968). Evidence of failure of conditions precedent. — When, at trial, specific evidence showing that all conditions precedent had not occurred was introduced by the defendant without objection, this evidence amended the pleadings by operation of law. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978). Divorce petition giving no indication that spouse is seeking alimony cannot be amended by introduction of evidence if the other spouse has filed no pleadings and does not litigate the issues at the trial. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972). When complaint for divorce did not affirmatively allege residence, so as to show legal jurisdiction of the court over the subject matter, such issue may be raised by the evidence, and if so raised is tantamount to an amendment of the pleadings to that effect. Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978). Recovery on quantum meruit in contract action. — Rule that one may not recover on quantum meruit, if evi- 326 dence so warrants, in a contract action no longer obtains, under subsection (b) of this section. Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972); Lake Lanier Cottage Owners Ass’n v. BMS Enters., Inc., 194 Ga. App. 858, 392 S.E.2d 312 (1990). Probate proceedings. — Despite an administrator’s claim that the probate court’s order did not conform to the issues pled, and specifically, that the court erred in resolving conflicting claims to alleged property of the estate and ordering reimbursement: (1) the probate court did not resolve conflicting claims to alleged property of the estate; (2) the administrator impliedly consented to adjudicating the issues; and (3) as the question of the legitimacy of the transactions was properly before the court, the court did not err in addressing the issue or in granting the relief necessary to protect the estate. Ray v. Nat’l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006). Grant of equitable relief not prayed for. — Under Ga. L. 1966, p. 609, § 54 and Ga. L. 1968, p. 1104, § 4 (see now O.C.G.A §§ 9-11-15 and 9-11-54), rule that equitable relief is limited to that alleged and prayed for is no longer applicable. DeRose v. Holcomb, 226 Ga. 289, 174 S.E.2d 410 (1970). Under Ga. L. 1966, p. 609, § 54 and Ga. L. 1968 p. 1104, § 4 (see now O.C.G.A §§ 9-11-15 and 9-11-54), when the issue is raised, the trial court is authorized to grant equitable relief, though not specifically prayed for. Logan v. Nunnelly, 128 Ga. App. 43, 195 S.E.2d 659 (1973). In absence of transcript the appellate court must assume that evidence amended pleadings under O.C.G.A. § 9-11-15 and authorized the verdict rendered. Hopkins v. Hopkins, 168 Ga. App. 144, 308 S.E.2d 426 (1983). Although a prospective property purchaser initially asserted a claim for specific performance based only on a right of first refusal in a contract between the purchaser and the property owner, for which relief was denied, and the purchaser thereafter purportedly amended the complaint to add a claim for the existence of a separate contract for the sale of the property at issue, because the pur- 9-11-15 chaser did not include a transcript from the hearing after the amendment, wherein the trial court indicated that the court’s prior order was a final judgment on the merits, there was nothing to support the purchaser’s claim on appeal that the additional contract claim was raised at that hearing by consent of the parties, pursuant to O.C.G.A. § 9-11-15(b); the appellate court had to assume the trial court’s judgment was correct and affirm, absent the transcript. Bay Meadow Corp. v. Hart, 276 Ga. App. 133, 622 S.E.2d 478 (2005). Father failed to show reversible error because, although the father argued that the trial court’s order improperly modified the father’s custodial rights since there were no pleadings or motions pending in the action that would allow modification of the custodial rights, without a transcript, the court of appeals had no information about how the issue was treated at trial, and the issue could have been tried by express or implied consent of the parties. Johnson v. Ware, 313 Ga. App. 774, 723 S.E.2d 18 (2012). Pleadings are deemed automatically amended to conform to evidence presented at trial. Gresham v. White Repair & Contracting Co., 158 Ga. App. 235, 279 S.E.2d 528 (1981). Pleadings amended to include claim for engineer services. — Even though the defendant’s claim for engineer services or cost thereof was not included in the defendant’s counterclaim, since the evidence of such claim was received without objection, the defendant’s counterclaim was amended by operation of law. Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708 (1981). When a landlord raised the issue of compliance with lease terms, though such issue was not raised in the pleadings, the landlord could not complain when the defendant lessee sought to challenge the landlord’s position of compliance. May v. Poole, 174 Ga. App. 224, 329 S.E.2d 561 (1985). Trial court did not err in failing to submit this issue to the jury as the issue of express warranty was not tried by implied consent; the parties viewed the service contract evidence as relevant to whether 327 9-11-15 Relation Back of Amendments Amendments to Conform to Evidence (Cont’d) 1. In General the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., which formed the basis of the buyer’s implied warranty claim, applied to the case and the evidence, therefore, related to an issue originally raised in the complaint but the record contained no suggestion that the buyer introduced the service contract evidence as part of an express warranty claim. Dildine v. Town & Country Truck Sales, Inc., 259 Ga. App. 732, 577 S.E.2d 882 (2003). Defaulting defendant, not put on notice, did not ‘‘consent’’ to punitive damages. — Defendant, who was in default and had been put on notice that the plaintiff considered the defendant’s conduct in repairing the plaintiff ’s roof to be merely negligent, could not be held to have consented to an amendment of the pleadings to support an award of punitive damages. Ticor Constr. Co. v. Brown, 255 Ga. 547, 340 S.E.2d 923 (1986). Amendment after commencement of trial. — Trial court did not err by granting a builder leave to file an amended complaint that included a claim for attorney fees after the commencement of the trial because homeowners could not show that the homeowners were prejudiced by the filing of the amended complaint of which the homeowners had prior notice and to which the homeowners had already consented; while the builder was required to obtain leave of court because the pleading had not been filed prior to the commencement of trial, under O.C.G.A. § 9-11-15(a), leave was to be freely given when justice so required. Harris v. Tutt, 306 Ga. App. 377, 702 S.E.2d 707 (2010). Post-judgment amendment to add a claim for attorney fees would have been proper if the issue of such fees had been tried by express or implied consent of the parties; when this was not the case, the court erred in admitting evidence regarding attorney fees. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985). Subsection (c) duplicates federal rule. — Subsection (c) of this section, as amended in 1972, is an exact duplicate of Fed. R. Civ. P. 15(c), as amended in 1966. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Scope of subsection (c). — Scope of subsection (c) of this section is not limited only to cases involving statutes of limitation. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975). Narrow, technical reading of subsection (c) would defeat purposes for which it was designed. Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975); Samples v. Barnes Group, Inc., 175 Ga. App. 253, 333 S.E.2d 147 (1985). ‘‘Original pleading’’ as used in subsection (c) of O.C.G.A. § 9-11-15 means the pleading being amended. Speer, Inc. v. Manis, 164 Ga. App. 460, 297 S.E.2d 374 (1982). Aim of relation back rule is to ameliorate impact of statute of limitation. See Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975); Maelstrom Properties, Inc. v. Holden, 158 Ga. App. 345, 280 S.E.2d 383 (1981); Suwannee Swifty Stores, Inc. v. NationsBank, N.A., 245 Ga. App. 198, 536 S.E.2d 299 (2000). Effect on running of limitations. — When the requirements of subsection (c) of O.C.G.A. § 9-11-15 are met, even the running of the statute of limitation does not control. Of course, amendment after judgment is not permitted. Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 398 S.E.2d 725 (1990). When the defendant admitted the defendant was a sister corporation of the original defendant in an action filed on the last day of the limitation period, and that the defendant knew or should have known the action would have been brought against the defendant, the valid service on the original defendant, after the expiration of the statute of limitations, was timely notice of the action. Tanner’s Rome, Inc. v. Ingram, 236 Ga. App. 275, 511 S.E.2d 617 (1999). 328 Motor carrier’s motion for permission to file a permissive counterclaim against a shipping broker in a federal action did not satisfy the 18-month statute of limitations in 49 U.S.C. § 14705(a) for bringing a state action against the broker as the motion for leave to file the counterclaim had been denied in the federal action and the notice required under O.C.G.A. § 9-11-15(c) was notice of the institution of the action (i.e., notice of the lawsuit itself ) and not merely notice of the incidents giving rise to such action. Exel Transp. Servs. v. Sigma Vita, Inc., 288 Ga. App. 527, 654 S.E.2d 665 (2007). Trial court did not err in denying a doctor’s motion to dismiss an administrator’s professional negligence claim because the new professional negligence claim related back to the date of the original complaint and was not barred by the two-year statute of limitation as both the original complaint and the amended complaint set forth allegations based upon the decedent’s surgery, emergency room visit, and discharge relating to the care received from the doctor following the laparoscopic gallbladder surgery the doctor performed. Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52 (2012). Primary question for consideration under subsection (c) of this section is whether allowance of the plaintiff ’s proposed amendment will work an injustice upon the defendant, and timeliness of the motion for leave to amend is one of the elements to be considered. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Requirement of substantial similarity. — Employee could not use the amendment provisions of O.C.G.A. § 9-11-15(c) to add claims for unjust enrichment and quantum meruit to a renewal action against the employer’s estate because the claims were not substantially similar to the claims in the original action. Burns v. Dees, 252 Ga. App. 598, 557 S.E.2d 32 (2001). Sexual assault, battery, and loss of consortium claims which were filed as part of the patient and husband’s renewed complaint were not ‘‘substantially similar’’ to claims included in their original complaint and since those actions were other- 9-11-15 wise barred because the applicable statute of limitations had ran regarding those claims, the trial court should have granted the psychologist’s and clinic’s motion for judgment on the pleadings as to those claims. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003). Burden is on the party seeking amendment to show lack of unexcusable delay or laches. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Untimeliness alone not sufficient to bar amendment. — Objection that motion to amend under subsection (c) of this section was not timely is not sufficient alone to bar the amendment. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Amendment to complaint, increasing damages sought, properly relates back to date of original pleading. Pardue Constr. Co. v. Toccoa, 147 Ga. App. 132, 248 S.E.2d 199 (1978). Although an original complaint sought only money damages, an amendment seeking equitable relief against the property in question related back so as to provide justification for defendants’ filing and pursuing lis pendens. Backman v. Packwood Indus., Inc., 227 Ga. App. 416, 489 S.E.2d 135 (1997). Amendment seeking jury trial. — When amendment to original answer, asking for a jury trial, was filed before entry of a pretrial order, the amendment would relate back to the original date of filing. Marler v. C & S Bank, 239 Ga. 342, 236 S.E.2d 590 (1977). Assertion of new cause of action. — Strict rule that amendment asserting a new cause of action will not relate back to the time of filing of the original complaint is no longer applicable, unless the causes of action are not only different but arise out of wholly different facts. Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14, 217 S.E.2d 358 (1975). Relation back doctrine did not apply to an employee’s second amended complaint filed against an employer’s shareholder because the employee personally characterized the action to enforce a judgment as wholly separate and distinct from the claims asserted against the employer; fur- 329 Relation Back of Amendments (Cont’d) 1. In General (Cont’d) ther, the court found unpersuasive the argument that the employee was unaware of the shareholder’s identity as the employer’s alter ego and that the employee mistakenly believed that the employer and the shareholder were separate entities and that the shareholder was protected by the corporate form. Pazur v. Belcher, 272 Ga. App. 456, 612 S.E.2d 481 (2004). Amendment not asserting new cause of action. — When plaintiff ’s original complaint, based on 42 U.S.C. § 1983 violations, was filed within two years after the injury, and the plaintiff asserted a First Amendment claim in an amendment, even though the First Amendment expression arose out of the plaintiff ’s prior activities, the plaintiff ’s claim for violation of such right arose out of defendant’s acts which were the basis of the § 1983 claim and related back to the date of the original complaint. Blue Ridge Mt. Fisheries, Inc. v. Department of Natural Resources, 217 Ga. App. 89, 456 S.E.2d 651 (1995). Counts III and IV of the amended complaint related back to the original complaint, filed within the statutory period, when the courts merely specified facts underlying the indebtedness claimed in the original complaint. Herndon v. Heard, 262 Ga. App. 334, 585 S.E.2d 637 (2003). Amendment validating service of process. — Amendment may relate back to the original complaint, thereby validating service of process. Leniston v. Bonfiglio, 138 Ga. App 151, 226 S.E.2d 1 (1976). For comment, see 28 Mercer L. Rev. 559 (1977). Allegation of conditions precedent. — Rule as to relation back applies to allegation of facts which are conditions precedent to existence of a right of action. Middlebrooks v. Daniels, 129 Ga. App. 790, 201 S.E.2d 338 (1973). Statute of limitation was not tolled while a motion to add the defendants was under advisement by the court; thus, subsection (c) of O.C.G.A. § 9-11-15 applied to determine whether the action was timely 9-11-15 commenced against the additional defendants. Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 436 S.E.2d 63 (1993). Amendment alleging separate publication of same libelous statement alleged in original complaint does not state a claim arising out of the conduct, transaction, or occurrence set forth in the original pleading. Cole v. Atlanta Gas Light Co., 144 Ga. App 575, 241 S.E.2d 462 (1978). Failure to file exceptions to auditor’s report within the statutory time period of former Code 1933, § 10-301 (see now O.C.G.A. § 9-7-14) cannot be cured by later amendments made after expiration of such time period as application of subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15) under these circumstances would frustrate the purpose of the limitation period and allow a party to do indirectly what cannot be done directly. Wise, Simpson, Aiken & Assoc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 247 S.E.2d 479 (1978). Amendment held not to relate back. — Later amendment cannot relate back under O.C.G.A. § 9-11-15 so as to cure a defect and affect vesting of title as of date original declaration petition was filed. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981). Count V of the amended complaint did not relate back to the original complaint since the count set forth the new claim of theft by deception, which had not been previously alleged in the almost six years that the suit had been pending. Herndon v. Heard, 262 Ga. App. 334, 585 S.E.2d 637 (2003). Renewal action. — Amendment to a complaint in a renewal action relates back to the date of the complaint in the renewal action and not the date of the original complaint which was dismissed. Speer, Inc. v. Manis, 164 Ga. App. 460, 297 S.E.2d 374 (1982). Action to enforce lien. — Subsection (c) of O.C.G.A. § 9-11-15, which permits amendments to relate back to the time of the original pleading, applies to actions to foreclose liens. Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161, 366 S.E.2d 292 (1988). 330 Action against former land manager. — Claim by a partnership against its former managing partner related back because the claim arose from the same conduct on which the original action was based. Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 648 S.E.2d 764 (2007). Assault and battery claim added to medical malpractice complaint was not time barred since it could not be said that the alleged malpractice and alleged unauthorized touching involved in the operation arose from different facts and, therefore, the amendment related back to the original complaint. Smith v. Wilfong, 218 Ga. App. 503, 462 S.E.2d 163 (1995). Federal civil rights claim grounded on allegations of a malicious conspiracy between the defendants and the judge who issued a restraining order, brought three years after the accrual of the cause of action and after the original claim for breach of contract, tortious interference with contractual rights, and indemnity did not relate back and was barred by the statute of limitation. Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984). Amendment to complaint changing the date of the alleged injury properly relates back to the date of the original pleading when change apparently was necessary due to a typographical error in the original complaint. Wilson v. Commercial Cold Storage, Inc., 179 Ga. App. 260, 346 S.E.2d 6 (1986). Intervenor’s claim for pain and suffering was a claim arising out of the conduct, transaction, or occurrence set forth in the original complaint and could be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes. P. F. Moon & Co. v. Payne, 256 Ga. App. 191, 568 S.E.2d 113 (2002). Defect in answer cured. — Because a corporation answered a complaint through a nonattorney corporate principal, the defect in the answer was cured by the filing of an answer by a licensed attorney, and the properly filed answer related back to the date of the original answer, pursuant to O.C.G.A. § 9-11-15(c); accordingly, it was error to enter a default judgment against the corporation pursuant to 9-11-15 O.C.G.A. § 9-11-55. Rainier Holdings, Inc. v. Tatum, 275 Ga. App. 878, 622 S.E.2d 86 (2005). In a tort action, venue over a defendant was assessed based upon the facts existing at the time the action was originally filed because the defendant was added as a party to a lawsuit under the relation back provision of O.C.G.A. § 9-11-15(c). Thus, venue under O.C.G.A. § 14-2-510 was proper based on the defendant’s having had an office and transacted business in the county at the time the suit was originally filed. HD Supply, Inc. v. Garger, 299 Ga. App. 751, 683 S.E.2d 671 (2009). Amendment related back to answer. — Seller’s answer was timely and legally sufficient because the seller, which was a corporation, filed an amended answer by and through an attorney of record before the entry of a pre-trial order. Therefore, the amended answer related back to the filing of the seller’s answer pursuant to O.C.G.A. § 9-11-15(c). Murray v. DeKalb Farmers Mkt., Inc., 305 Ga. App. 523, 699 S.E.2d 842 (2010). Implicit approval to amendment to complaint’s requested amount of damages. — Although a condominium association’s own documents, including an account ledger, the complaint, and a motion for summary judgment, all showed different amounts due to the association from an owner, there was no issue of fact. The trial court’s grant of the association’s motion for summary judgment seeking damages which accrued after the date the association’s complaint was filed implicitly approved an amendment to the complaint under O.C.G.A. § 9-11-15(b). Ellington v. Gallery Condo. Ass’n, 313 Ga. App. 424, 721 S.E.2d 631 (2011). 2. Amendments Changing or Adding Parties Relation back occurs both as to plaintiff and defendant under subsection (c) of this section when new and old parties have such identity of interest that relation back is not prejudicial, and when new cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, provided other requirements are also met. Gordon v. Gillespie, 135 Ga. App. 331 Relation Back of Amendments (Cont’d) 2. Amendments Changing or Adding Parties (Cont’d) 369, 217 S.E.2d 628 (1975). Examples of proper changes in parties contemplated and permitted by subsection (c) of this section are: substituting a party for a ‘‘John Doe’’ defendant who has been identified and served; changing capacity of a party plaintiff; changing a misnomer; changing named corporate defendant to reflect true corporation; and adding other survivors of decedent as parties plaintiff. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975). Added parties need not be ‘‘necessary parties’’. — There is nothing in language of subsection (c) of this section which requires that in order to add parties whose claims relate back to filing of the original complaint added parties must be necessary parties. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Addition of strangers to suit not contemplated. — Addition of parties who are altogether strangers to the original suit, insofar as notice and knowledge thereof, was not intended to be encompassed within the word ‘‘changing.’’ A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975). Addition of totally new parties by amendment does not relate back to filing of original suit for purposes of determining whether a prior pending suit exists. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975). Subsection (c) of O.C.G.A. § 9-11-15 negates any idea that the provisions can be used to add parties who are altogether strangers to the action or that, by ‘‘relating back’’ that addition, the plaintiff can escape an expired limitation. Beaver v. Steinichen, 182 Ga. App. 303, 355 S.E.2d 698 (1987). Complaint amended to add additional plaintiff relates back to the date of the original pleading if the defendant was given notice of the additional plaintiff ’s claim and if that claim arose out of the same conduct, transaction, or occurrence set forth in the original pleading. 9-11-15 Downs v. Jones, 140 Ga. App. 752, 231 S.E.2d 816 (1976), vacated on other grounds, 142 Ga. App. 316, 235 S.E.2d 760 (1977). Substitution of proper plaintiff when suit brought by beneficiary. — When suit is brought by one who has no legal right to maintain the suit, but who has a beneficial interest in the subject matter of the action, substitution of a proper plaintiff will relate back to the time of filing of the original action. Atlanta Newspapers, Inc. v. Shaw, 123 Ga. App. 848, 182 S.E.2d 683 (1971). Meaning of ‘‘changing party against whom claim is asserted.’’ — Because from the viewpoint of the party sought to be added belatedly, it makes no difference whether the party was originally designated as John Doe and not served or originally neither named nor served because another person was erroneously thought to be the correct defendant, both situations are encompassed by reference in subsection (c) of this section to ‘‘changing the party against whom a claim is asserted.’’ Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974). Requirements for relation back of amendment changing defendant. — Amendment to a complaint changing the party defendant relates back to the date of the original pleadings and prevents bar of the statute of limitation if the following requirements are met: (1) suit was commenced within the lawful period; (2) the claim arose out of the conduct, transaction, or occurrence in the original complaint; (3) the new defendant received notice of original filing of the action within the period provided by law for commencing the action against the defendant; (4) notice is such that the defendant will not be prejudiced in maintaining the defendant’s defense on the merits; and (5) the new defendant knew or should have known that, but for a mistake concerning identity of the proper party, the action would have been brought against the defendant. Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 216 S.E.2d 648 (1975). Subsection (c) of O.C.G.A. § 9-11-15 permits an amendment changing the parties to relate back to the date of filing the original petition provided that the amend- 332 ment arises out of the same facts as the original complaint, that the new defendant has sufficient notice of the action, and that the defendant knew or should have known that, but for a mistake concerning the defendant’s identity as a proper party, the action would have been brought against the defendant. Trillium Nursing Home, Inc. v. Thebaut, 189 Ga. App. 411, 375 S.E.2d 888 (1988). Amendment to add a new party defendant was authorized when the amendment adding the new defendant arose out of the same facts as the original complaint, the new defendant had sufficient notice of the action, and the new defendant knew or should have known that, but for a mistake concerning the defendant’s identity as a proper party, the action would have been brought against the defendant. Robinson v. Piggly Wiggly of Calhoun, Inc., 193 Ga. App. 675, 388 S.E.2d 754 (1989); Ford v. Olympia Skate Ctr., Inc., 213 Ga. App. 600, 445 S.E.2d 362 (1994). Relation back when defendant has notice of cause of action and is not prejudiced. — When defendant is clearly on notice of the ‘‘cause of action’’ sought to be asserted, and is not prejudiced for lack of such notice, amendment by the plaintiff under subsection (c) of this section to add parties will relate back. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Required notice of institution of the action may be formal or informal. Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974). Notice of incidence giving rise to litigation does not satisfy requirement of subsection (c) of this section that party sought to be added must have notice of institution of action. Hall v. Hatcher Sales Co., 149 Ga. App. 133, 253 S.E.2d 812 (1979); Harrison v. Golden, 219 Ga. App. 772, 466 S.E.2d 890 (1995). Fair notice as protection intended by statute of limitation. — Subsection (c) of this section is based on idea that party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitations than one who is informed of the precise legal description of 9-11-15 the rights sought to be enforced; hence, if original pleading gives fair notice of the general fact situation out of which the claim arises, the defendant will not be deprived of any protection which the statute of limitations was designed to afford the defendant. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975). Statute of limitation will bar relation back when original complaint did not fairly notify defendant. Downs v. Jones, 140 Ga. App. 752, 231 S.E.2d 816 (1976), vacated on other grounds, 142 Ga. App. 316, 235 S.E.2d 760 (1977); Swan v. Johnson, 219 Ga. App. 450, 465 S.E.2d 684 (1995); Harding v. Godwin, 238 Ga. App. 432, 518 S.E.2d 910 (1999); Deleo v. Mid-Towne Home Infusion, Inc., 244 Ga. App. 683, 536 S.E.2d 569 (2000); Stephens v. McDonald’s Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000). There was no error in dismissing the petitioner’s civil rights complaint without prejudice and with leave to amend and the petitioner’s subsequent motion to reconsider because the petitioner did not identify any legal standards or procedures the judge improperly applied, manifest errors in fact-finding by the judge, or newly discovered evidence; the petitioner erroneously argued the dismissal was tantamount to a dismissal with prejudice. McFarlin v. Douglas County, No. 13-15115, 2014 U.S. App. LEXIS 18700 (11th Cir. Sept. 30, 2014) (Unpublished). Statute of limitations bars addition of new parties in renewal action. — Interaction of the renewal statute (O.C.G.A. § 9-2-61) with the amendment provisions of subsection (c) of O.C.G.A. § 9-11-15 does not permit the addition of a new party to a second lawsuit which is filed within the six-month renewal period but outside the statute of limitations. Wagner v. Casey, 169 Ga. App. 500, 313 S.E.2d 756 (1984). Requirements for adding party by amendment not satisfied. See Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984); Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 436 S.E.2d 63 (1993). Trial court properly denied the plaintiffs’ motion to amend their medical malpractice complaint against the state enti- 333 Relation Back of Amendments (Cont’d) 2. Amendments Changing or Adding Parties (Cont’d) ties in order to ‘‘correct an alleged misnomer,’’ pursuant to O.C.G.A. § 9-10-132, as the plaintiffs sought to add two party defendants, who were new and distinct and who had not been served with process; there was no showing that the parties sought to be added had actual notice of the litigation, pursuant to O.C.G.A. § 9-11-15(c), for purposes of amendment under the relation back doctrine. Green v. Cent. State Hosp., 275 Ga. App. 569, 621 S.E.2d 491 (2005). 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) and 9-11-21; 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). 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 a worker’s personal injury suit, the trial court properly denied the worker’s motion to add a franchisor as a defendant under O.C.G.A. § 9-11-15(c). The franchisor had not received timely notice of the 9-11-15 lawsuit, and the mere fact that the franchisor was a subsidiary of a defendant corporation was insufficient, in and of itself, to impute the corporation’s notice of the lawsuit to the franchisor. Matson v. Noble Inv. Group, LLC, 288 Ga. App. 650, 655 S.E.2d 275 (2007). Parking lot owner was entitled to dismissal of a plaintiff ’s negligence action because the amended complaint adding the owner as a defendant did not relate back under O.C.G.A. § 9-11-15(c) and, thus, was barred by the statute of limitations because the mere fact that the owner’s attorney worked in the same firm as the original defendants’ attorney did not impute knowledge of the lawsuit to the owner. LAZ Parking/Georgia, Inc. v. Jones, 294 Ga. App. 122, 668 S.E.2d 547 (2008). 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). Request by a deceased patient’s widow to add the treating physician’s employer to the widow’s medical malpractice action was properly denied as the widow failed to show that the employer had notice of the institution of the lawsuit prior to the expiration of the statute of limitations; notice to the hospital and the physician of the institution of litigation did not constitute notice to the employer, even though they were all insured by the same carrier. Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537, 746 S.E.2d 734 (2013). Party offering amendment must demonstrate no inexcusable delay. — Party offering the amendment adding a new party must demonstrate that the party has not been guilty of inexcusable delay. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983). Refusal to add and change designation of third-party defendants. — Trial court did not err in denying the plaintiff ’s motion to add and change the designation of third-party defendants, when the 334 third-party defendants were aware of the plaintiff ’s charges against the defendants and were defending against the defendants’ claims before the statute of limitations had expired, and the plaintiff offered no excuse for the delay in attempting to add third-party defendants. Hall v. Scott USA, Ltd., 198 Ga. App. 197, 400 S.E.2d 700 (1990). Movant may establish lack of prejudice in amendment by showing ‘‘identity of interest’’ between the old and the new parties. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983). Amendment seeking to add insurer, who had subrogation rights in plaintiff ’s original cause, as party plaintiff was proper and related back to the original petition. Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983), aff ’d, 255 Ga. 27, 335 S.E.2d 113 (1985). Relation back provisions of subsection (c) do not apply to service of uninsured motorist carrier. — Relation back provisions of O.C.G.A. § 9-11-15(c) do not apply to situations involving service of an uninsured motorist carrier, if for no other reason than simply because such service does not necessarily result in the insurer becoming a party to the action. State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 383 S.E.2d 157, cert. denied, 191 Ga. App. 923, 383 S.E.2d 157 (1989). Court did not abuse discretion in denying plaintiff ’s motion to add plaintiff ’s spouse as a party since the suit had been pending and active for over seven years and the party to be added knew of the suit (as did the party seeking the spouse’s addition) and the new party was asserting an independent claim and offered no justification for delaying entry into the lawsuit. Maitlen v. Derst, 178 Ga. App. 305, 342 S.E.2d 777 (1986). Action against unknown defendant when service not had prior to running of statute. — When a complaint is filed against one designated by a fictitious name, as allowed by Ga. L. 1967, p. 226, § 47 (see now O.C.G.A. § 9-11-10(a)), but no service on that defendant is made prior to the running of the statute of limitation, and after running of the statute it is 9-11-15 desired to substitute name of and serve actual defendant, that substitution and service constitute ‘‘changing the party against whom a claim is asserted’’ within the meaning of subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15), and the requirements thereof must be met before such substitution may be made. Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121, aff ’d sub nom. Providence Wash Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974); Moulden Supply Co. v. Rojas, 135 Ga. App. 229, 217 S.E.2d 468 (1975); Larson v. C.W. Matthews Contracting Co., 182 Ga. App. 356, 356 S.E.2d 35 (1987). In cases involving ‘‘John Doe’’ or unknown defendant as allowed by Ga. L. 1967, p. 226, § 47 (see now O.C.G.A. § 9-11-10(a)), when there is no service on the entity intended prior to the running of the statute of limitation, limitation plea is good, unless there has been prior notice of institution of the action or its equivalent so as to bring the case within the exception stated within subsection (c) of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15). Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff ’d, 236 Ga. 582, 224 S.E.2d 416 (1976). When an unidentified party is sued as ‘‘John Doe’’ and service as to the unknown party is successful within the statute of limitations, an amendment to the complaint relates back to the filing of the original complaint. When service has not been effected successfully on the John Doe party within the statutory time of limitations, the test of subsection (c) of O.C.G.A. § 9-11-15 applies. Bailey v. Kemper Group, 182 Ga. App. 604, 356 S.E.2d 695 (1987). When one has filed a complaint naming a ‘‘John Doe’’ defendant, the requirements of subsection (c) of O.C.G.A. § 9-11-15 must be met before the amendment substituting the named party will relate back to the date of the complaint if service has not been effected before the expiration of the statute of limitations. Harper v. Mayor of Savannah, 190 Ga. App. 637, 380 S.E.2d 78 (1989). Action against unknown defendant and service within limitations period. — In a personal injury action, a 335 Relation Back of Amendments (Cont’d) 2. Amendments Changing or Adding Parties (Cont’d) trucking company and an insurance company that were originally sued in a timely manner as ‘‘John Doe’’ and were notified within the applicable limitations period that the companies would be sued as regular parties were not entitled to dismissal as the second complaint related back. McNeil v. McCollum, 276 Ga. App. 882, 625 S.E.2d 10 (2005). Leave and order of court to make new party defendant. — 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). 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. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 94 (1983). Prior to adoption of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), failure to name necessary party defendants was nonamendable and required dismissal. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978). When amended complaint to add a party defendant was filed within statutory period, the fact that service was perfected upon added party defendant one day after two-year limitation period did not bar the amended complaint. Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973). That amendment might relate back and bar statute of limitation is not prejudice such as to bar the amendment to add a party. Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983), aff ’d, 255 Ga. 27, 335 S.E.2d 113 (1985). Amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation. Horne v. Carswell, 167 Ga. App. 229, 306 S.E.2d 9-11-15 94 (1983); Harper v. DOT, 195 Ga. App. 602, 394 S.E.2d 398 (1990). Since the statute of limitation had not run at the time plaintiffs filed their 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 when 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). Addition of new party not allowed when statute of limitations has run. — When husband and wife sought an order permitting them to amend their complaint to add, as a defendant, a probation officer responsible for supervising the juvenile who beat the husband, but the order was sought after the statute of limitations had run and the two submitted no excuse for having failed to name and serve the proposed new party, the trial court was correct in not allowing the complaint to be amended. Sargent v. Department of Human Resources, 202 Ga. App. 874, 415 S.E.2d 918 (1992). Georgia renewal statute, O.C.G.A. § 9-2-61, could not have been used to suspend the running of the statute of limitation as to defendants different from those originally sued; the trial court did not err in dismissing a premises liability complaint when the injured person originally sued an incorrect defendant, then later sued the store owner after the statute of limitations had expired, then, after that case was dismissed again sued the original incorrect defendant, and finally amended the complaint to include the store owner. Brown v. J. H. Harvey Co., 268 Ga. App. 322, 601 S.E.2d 808 (2004). Because a belated claim filed against an alleged homebuilder’s partner did not relate back to the date of the original complaint, as required by O.C.G.A. 336 § 9-11-15(c), summary judgment in favor of the homebuilder was correctly granted based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v.