                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   August 20, 2019




In the Court of Appeals of Georgia
 A19A0882. MORENO v. CARNICERIA, LOA #2.

      RICKMAN, Judge.

      Following an alleged slip and fall at Carniceria Loa #2, Raul Moreno filed suit

against Carniceria Loa #2, aka Carniceria Loa, Inc. and John Doe seeking damages.

After Carniceria Loa #2 filed a special appearance answer informing Moreno that it

was not associated with Carniceria Loa, Inc., Moreno filed an amended complaint

naming Carniceria Loa #2 and John Doe as the defendants. Thereafter, Moreno

dismissed the action without prejudice.

     Approximately six months later, Moreno filed a renewal complaint against

Carniceria Loa #2, a sole partnership of Jose Madrigal. The trial court granted

Carniceria Loa #2’s motion for summary judgment, finding that Moreno’s amended

complaint was void because it was not the correction of a misnomer and thus,
Moreno’s claims were time barred because he failed to file suit against Carniceria Loa

#2 prior to the expiration of the two-year statute of limitation. On appeal, Moreno

contends that the trial court erred by dismissing his complaint. For the following

reasons, we vacate the judgment and remand the case to the trial court.

      Initially, we recognize that “[i]t is well-established that there is no magic in

nomenclature, and in classifying pleadings the courts will construe them to serve the

best interests of the pleader, judging the pleading by its function rather than by its

name.” (Citation and punctuation omitted.) Doe v. State, 347 Ga. App. 246, 250 (1)

(819 SE2d 58) (2018). Because the substance of Carniceria Loa #2’s motion for

summary judgment requested that Moreno’s complaint be dismissed because it was

barred by the statute of limitation, we will interpret Carniceria Loa #2’s motion for

summary judgment as a motion to dismiss. See Gullatt v. Omega Psi Phi Fraternity,

248 Ga. App. 779, 779 (1) (546 SE2d 927) (2001) (“A motion to dismiss barred

claims is properly granted when a complaint shows on its face that the statute of

limitation has run and there is no further showing by amendment or by affidavit that

a tolling of the statute is possible.”) (citations and punctuation omitted).

      “When a question of law is at issue, such as whether the statute of limitation

bars an action, we owe no deference to the trial court’s ruling and apply the plain

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legal error standard of review.” (Citation and punctuation omitted.) Harpe v. Hall,

266 Ga. App. 340, 340 (596 SE2d 666) (2004).

      So viewed, the day before the statute of limitation expired, Moreno filed his

original complaint against Carniceria Loa #2 aka Carniceria Loa, Inc. and John Doe

alleging that due to negligent acts of defendants’ employees and agents he was

injured. See OCGA § 9-3-33 (“actions for injuries to the person shall be brought

within two years after the right of action accrues”). The complaint states that process

may be served upon the registered agent for Carniceria Loa. Following service of

process upon the registered agent for Carniceria Loa, Carniceria Loa #2 filed a special

appearance answer asserting, inter alia, that Carniceria Loa #2 was a sole

proprietorship and not affiliated with Carniceria Loa, Inc. Carniceria Loa #2 also filed

an affidavit from Jose Madrigal who averred that he was the owner and proprietor of

Carniceria Loa #2.

      It appears from the record that after Carniceria Loa #2 filed its special

appearance, Moreno twice served Madrigal with the original complaint. Moreno then

filed an amended complaint, naming Carniceria Loa #2 and John Doe as defendants,

and served it upon Madrigal. Approximately one week later, Moreno dismissed the

action without prejudice.

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      Approximately six months after dismissing the action, Moreno filed a renewal

complaint against Carniceria Loa #2, a sole proprietorship of Jose Madrigal.

Carniceria Loa #2 moved for summary judgment, arguing that Moreno’s renewal

complaint was an improper attempt to renew his personal injury action because the

renewal suit was filed after the expiration of the statute of limitation and did not name

the same defendants as in the first complaint. The trial court agreed with Carniceria

Loa #2 and dismissed the action.

      Moreno contends that the trial court erred by dismissing his action against

Carniceria Loa #2. Specifically, Moreno argues, inter alia, that because he properly

served Madrigal with the original complaint prior to filing the amended complaint,

the amendment related back to the original filing of the complaint before the

expiration of the statute of limitation.

      “All misnomers, whether in the Christian name or surname, made in writs,

pleadings, or other civil judicial proceedings, shall, on motion, be amended and

corrected instanter without working unnecessary delay to the party making the same.”

OCGA § 9-10-132. “When a person has been sued in their trade name, this misnomer

may be corrected to sue in their real or true name; however, the amendment cannot

state a new cause of action or introduce a new party to the suit.” Foskey v. Vidalia

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City School, 258 Ga. App. 298, 299 (a) (574 SE2d 367) (2002). “Thus, an amendment

that seeks to correct the name of the right party sued shall be permitted, but if a new

party on the record is brought into the suit, then such substitution should be refused.”

Id. “Where the real defendant was properly served or acknowledged service, an

amendment to correct a misnomer to set forth the correct identity of this defendant is

not a change of parties requiring a court order, but a correction of a misnomer, even

if the statute of limitation has run.” Id. at 300. See Northgate Village Apts. v. Smith,

207 Ga. App. 479, 481 (2) (428 SE2d 381) (1993) (“Where the real defendant has

been properly served, a plaintiff has the right to amend in order to correct a misnomer

in the description of the defendant contained in the complaint.”) (citation and

punctuation omitted); London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 695 (2)

(212 SE2d 21) (1975) (same).

      Here, in the “background” section of its order, the trial court stated that “the

summons and [o]riginal [c]omplaint [were] served on [Carniceria Loa #2]. Later in

the analysis section, the trial court cited to Foskey for the proposition that “[w]hen the

actual defendant is served, despite being incorrectly identified in the complaint, the

plaintiff can correct this error without leave of court. . . Meaning in a case where the

defendant has been served, this court will allow the correction of an inadequate or

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defective designation.” Interestingly, the trial court explained that here “[Moreno’s]

amendment was not the correction of a misnomer because not only was [Carniceria

Loa #2] never served with the [o]riginial [c]omplaint, but this amendment substituted

one entity for another entity.”

      It appears from the record that Carniceria Loa #2 was served with the original

complaint when Moreno served its sole proprietor, Madrigal. However, we cannot

reconcile the trial court’s order which finds that Carniceria Loa #2 both was and was

not served with the original complaint. Whether Carniceria Loa #2 was properly

served with the original complaint is a fact that must be found by the trial court prior

to engaging in any further analysis. Should the trial court find that Carniceria Loa #2

was properly served, then it should determine what effect, if any, that service has on

the viability of the renewal complaint. Accordingly, we vacate the judgment and

remand the case to the trial court for proceedings consistent with this opinion. See

generally Chatham v. World Arts & Crafts Center, 147 Ga. App. 421, 422 (249 SE2d

139) (1978).

      Judgment vacated; case remanded. Miller, P. J., and Reese, J., concur.




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