                              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


                                                                    March 10, 2020




In the Court of Appeals of Georgia
 A19A2082. ST. FRANCIS HEALTH, LLC v. WENG.

      RICKMAN, Judge.

      St. Francis Health, LLC (“SF Health”) appeals from an order of the Muscogee

County State Court denying its motion to dismiss the claims asserted against it by

Carol Anita Weng and granting Weng’s motion to add SF Health as a party-defendant

in the underlying case. SF Health contends that the trial court’s order must be

reversed because Weng’s claims against it are barred by the applicable statute of

limitation, and the trial court erred in concluding otherwise. For reasons explained

more fully below, we agree and therefore reverse the trial court’s order.

      We review a trial court’s decision on a motion to add a party to an existing

action for an abuse of discretion. Western Sky Financial, LLC v. State ex rel. Olens,

300 Ga. 340, 357 (3) (a) (793 SE2d 357) (2016). “Such an abuse occurs where the
trial court’s ruling is unsupported by any evidence of record or where that ruling

misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications,

301 Ga. App. 881, 881 (690 SE2d 210) (2010).

      Here, the relevant facts are undisputed and show that Weng, acting individually

and in her capacity as next of kin and executrix of the estate of Lethia Jean

Hemingway, filed the current action on August 29, 2018 against a number of

defendants, including SFH Wind Down, Inc., d/b/a St. Francis Hospital, Inc., d/b/a

St. Francis Hospital (“SFH Wind Down”).1 The complaint asserted a claim for

medical malpractice and alleged that on September 4 and 5, 2016, the defendants

failed to diagnose and treat a pulmonary embolism suffered by Hemingway that

resulted in her death.2

      On September 6, 2018, SFH Wind Down’s registered agent received service

of the complaint. That same day, the attorney for SFH Wind Down emailed Weng’s




      1
      The other named defendants were Max R. Shiver, M.D., John Doe MDs 1-3,
John Doe CRNs 1-3, TeamHealth, LLC, and/or XYZ Corp. 1-3. None of the other
named defendants is a party to this appeal.
      2
       The claims asserted against SFH Wind Down were based on the theories of
respondeat superior and agency.

                                         2
attorney and informed him that “SFH Wind Down, Inc., . . . f/k/a St. Francis Hospital,

Inc. . . . is currently a Chapter 7 debtor in a bankruptcy . . . .” The email further stated:

       I am writing as a courtesy to inform you that you have sued the wrong
       entity. SFH [Wind Down] sold the assets of St. Francis Hospital in a
       transaction that was effective January 1, 2016. I believe with due
       diligence you will find that, at the time of the claim asserted in the
       Lawsuit (and continuing until the present date), the hospital was owned
       and operated by St. Francis Health, LLC, a Delaware entity.




       Approximately six weeks after receiving that email (and approximately six

weeks after the statute of limitations had expired), Weng filed an amended complaint

in which she named SF Health as a defendant in lieu of SFH Wind Down. Although

the amended complaint purported to drop two previously-named defendants and add

three new party-defendants, including SF Health,3 Weng neither sought nor obtained

leave of court before filing that complaint.

       On October 26, SF Health filed a notice of special appearance, together with

an answer, affirmative defenses, and a motion to dismiss. In support of its motion to


       3
        The complaint also dropped TeamHealth, LLC as a defendant and instead
named Inphynet Primary Care Physicians, Southeast, P. C. and Acute-Care Express
as defendants.

                                             3
dismiss, SF Health asserted that it could not be added as a party-defendant by way of

an amended complaint. It further argued that because Weng had failed to file her

claims against SF Health or otherwise provide that entity with notice of her lawsuit

within the applicable statute of limitation, Weng’s claims were time-barred.

Approximately one month later, on November 23, Weng filed both a response to the

motion to dismiss and a motion seeking leave of court to dismiss SFH Wind Down

and add SF Health as a party-defendant.

      Following a hearing, the trial court entered an order denying the motion to

dismiss and granting Weng leave to add SF Health as a party-defendant. The court

thereafter certified its order for immediate review, and SF Health filed an application

for an interlocutory appeal, which this Court granted. This appeal followed.

      SF Health asserts that the trial court erred in denying its motion to dismiss

because Weng failed to bring her claims against it within the applicable statute of

limitation. We agree.

      The undisputed evidence shows that the statute of limitation on Weng’s

medical malpractice claims expired on September 5, 2018. See OCGA § 9-3-71 (a)

(“[A]n action for medical malpractice shall be brought within two years after the date

on which an injury or death arising from a negligent or wrongful act or omission

                                          4
occurred.”) Although Weng filed her original complaint within the limitation period,

there is no evidence that SF Health received notice of the action until on or about

October 15, 2018, when Weng filed her unauthorized4 amended complaint naming SF

Health as a new defendant. Despite the fact that Weng presented no evidence showing

that SF Health had notice of the lawsuit until approximately six weeks after the

statute of limitation had expired, the trial court denied the company’s motion to

dismiss and allowed Weng to amend her complaint to add SF Health as a party.

Specifically, the trial court found that such an amendment naming a new party outside

of the limitation period was allowed under OCGA § 9-11-15 and OCGA § 9-11-21.

      The statutory subsection on which the trial court relied permits a plaintiff to

add a new party-defendant to her lawsuit after the statute of limitation has expired

where the plaintiff can demonstrate that: (1) the claim asserted in the amended

complaint arises out of the same underlying facts “set forth in the original pleading”;

(2) during the applicable limitation period, the new defendant had notice of the

original lawsuit such that “he will not be prejudiced in maintaining his defense on the


      4
         See Wright v. Safari Club Int’l, 322 Ga. App. 486, 494 (5) (745 SE2d 730)
(2013) (because a court order is required to add or drop parties to a lawsuit, “an
amendment to a complaint adding a new party without first obtaining leave of the
court is without effect”) (citation and punctuation omitted).

                                          5
merits”; and (3) the new defendant “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.” OCGA § 9-11-15 (c). See also Cartwright v. Fuji Photo Film

U.S.A., 312 Ga. App. 890, 894 (2) (720 SE2d 200) (2011).

      In its order granting Weng leave to add SF Health as a party defendant, the trial

court addressed only the question of whether SF Health would suffer prejudice if

added to the lawsuit almost 5 months after the statute of limitation had run. And it

concluded that no such prejudice would occur because “written discovery has just

begun, with extension of time for filing discovery having been previously mutually

agreed-upon by the parties.” Notably, the trial court’s order did not address whether

SF Health had notice of the lawsuit before the limitation period expired.

      In this context, notice refers to “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.” (Citation and punctuation omitted). Excel Transportation Services v. Sigma

Vita, 288 Ga. App. 527, 532 (b) (654 SE2d 665) (2007). And here, Weng presented

no evidence showing that SF Health had such notice.5 Compare Rasheed v. Klopp

      5
        Even if we assumed that the attorneys for SFH Wind Down informed SF
Health of the underlying lawsuit, the record shows that SF Wind Down was not
served with the complaint (and therefore did not have notice of the lawsuit) until

                                           6
Enterprises, 276 Ga. App. 91, 93-94 (1) (622 SE2d 442) (2005) (amended complaint

adding a new party-defendant following the expiration of the statute of limitation

related back to the filing of the original complaint; the original defendant and the new

defendant were “intertwined corporations which both [had] received notice of [the]

action before the expiration of the statute of limitation”) (citation and punctuation

omitted); Robinson v. Piggly Wiggly of Calhoun, 193 Ga. App. 675, 676 (388 SE2d

754) (1989) (relation-back provision of OCGA § 9-11-15 (c) applied where the

evidence showed that the agent for the improperly-named defendant also served as

president of the newly-named defendant, whom plaintiff sought to add as a party after

the limitation period had expired; because its president had accepted service of the

original lawsuit, the new defendant had notice of the lawsuit within the statute of

limitation).

       Given Weng’s failure to come forward with any evidence showing that SF

Health had knowledge of her lawsuit before the limitation period expired, the trial

court abused its discretion in allowing Weng to amend her complaint to add SF

Health as a party defendant and in denying SF Health’s motion to dismiss the claims

against it. See Harrison v. Golden, 219 Ga. App. 772, 773 (1) (466 SE2d 890) (1995).

September 6, 2018, one day after the statute expired.

                                           7
See also Ford Motor Co. v. Conley, 294 Ga. 530, 538 (2) (757 SE2d 20) (2014) (“the

trial court’s discretion must be exercised in conformity with the governing legal

principles”). Accordingly, we reverse the trial court’s order.

      Judgment reversed. Miller, P. J., and Reese, J., concur.




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