                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, 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


                                                                     June 14, 2017




In the Court of Appeals of Georgia
 A17A0554. DOBY et al. v. BIVINS.

      BRANCH, Judge.

      Sunkeeya Doby appeals the trial court’s award of summary judgment in favor

of the defendant in Doby’s tort suit arising out of an automobile collision. For the

reasons that follow, we affirm in part, reverse in part and remand with direction.

      On appeal from the grant of summary judgment, we construe the evidence most

favorably towards the nonmoving party, who is given the benefit of all reasonable

doubts and possible inferences. Ansley v. Raczka–Long, 293 Ga. 138, 140 (2) (744

SE2d 55) (2013) (citations omitted); see also Home Builders Assn. of Savannah v.

Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Our review is de

novo. Ansley, 293 Ga. at 140 (2). We also review questions of law on appeal under
the de novo standard. Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga.

App. 123, 125 (730 SE2d 514) (2012).

      Construed in favor of Doby, the record shows that on January 18, 2014, Doby

and her two minor children were involved in an accident in which the other driver,

a man, left the scene without providing insurance information. Doby, however, was

able to obtain the licence tag number of the other vehicle, and she gave that

information to the police when they arrived on the scene. The accident report, which

Doby attached to her verified complaint, states that the police determined that the

other vehicle was registered to “a female named Treneika Bivins.” On May 5, 2015,

Doby filed suit, but she named the appellee Lillian Bivins, Treneika’s mother, as the

defendant rather than Treneika. In the complaint, Doby alleged that the officer

determined that the other vehicle belonged to Lillian. Doby did not allege that either

Lillian or Treneika were in the other vehicle at the time of the collision. Instead, she

alleged that Lillian must have given permission to use her car to the man who was

driving the vehicle at the time of the accident.

      Lillian Bivins answered and raised several defenses including that she did not

have any authority or control over those responsible for the accident and that she did

not cause the accident. And on July 1, 2016, she filed a motion to dismiss or for

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summary judgment on the ground that she was not the driver of the vehicle involved

in the collision; that there was no evidence to support the contention that she owned

the vehicle involved in the accident; that, in fact, the officer’s report showed that the

vehicle belonged to Treneika, the defendant’s daughter; and that Doby had not shown

that the family purpose doctrine applies to the case.1 Doby did not respond to the

motion. Instead, on July 25, 2016, Doby moved to join an indispensable party,

namely, Treneika Bivins, on the ground that Treneika was the alleged owner of the

vehicle involved in the collision. Doby asserted in the motion that although the

accident report states that the other vehicle was registered in the name of Treneika

Bivins,

      correspondence received in response to Plaintiff’s request for insurance
      information on both Lillian Bivins and Treneika Bivins, only contained
      the name of Lillian Bivins and not Treneika Bivins. It is unclear as to
      which of these two individuals was the owner and insured of the car
      involved in the accident.




      1
        That doctrine provides that “Every person shall be liable for torts committed
by his wife, his child, or his servant by his command or in the prosecution and within
the scope of his business, whether the same are committed by negligence or
voluntarily.” OCGA § 51-2-2.

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      In its order on the motions, the court found that there was no allegation that

either Treneika or Lillian was in the other vehicle at the time of the collision and that

Doby had not established any of the four preconditions2 to application of the family

purpose doctrine against Lillian. With regard to Doby’s motion to add an

indispensable party, the court held that even if Treneika had been sued initially, she

could only be seen as a joint tortfeasor with the unknown driver, and that therefore

she was not an indispensable party to the suit. Relying on Ekokotu v. Pizza Hut, 205

Ga. App. 534, 537 (5) (422 SE2d 903) (1992), the court reasoned that, alternatively,


      2
       There is a two-part test for imposing vicarious liability under the family
purpose doctrine.
      First, the following four preconditions must be found present: (1) the
      owner of the vehicle must have given permission to a family member to
      drive the vehicle; (2) the vehicle’s owner must have relinquished control
      of the vehicle to the family member; (3) the family member must be in
      the vehicle; and (4) the vehicle must be engaged in a family purpose.
      Second, and only after the above four ‘necessary preconditions’ have
      been satisfied, the doctrine renders the defendant vicariously liable if
      defendant had the right to exercise such authority and control that it may
      be concluded that an agency relationship existed between defendant and
      the family member with respect to the use of the vehicle.


Dashtpeyma v. Wade, 285 Ga. App. 361, 362-363 (2) (646 SE2d 335) (2007)
(punctuation and footnote omitted).

                                           4
even if Treneika was an indispensable party, because summary judgment was

authorized, the motion to add a party was moot. The trial court therefore granted

Lillian’s motion for summary judgment and dismissed the complaint with prejudice.

      On appeal, Doby asserts that she mistakenly named the wrong party in her

lawsuit and that the trial court should have granted her motion to add an

indispensable party instead of dismissing her suit with prejudice. She also contends

it was error to dismiss the case without ruling on the motion to add Treneika. She

argues that Treneika “is the correct party to the lawsuit as can [be] seen from the

Police Report attached [to the complaint].” Meanwhile, Doby admits on appeal that

“there is no evidence showing [Lillian] as being a co-owner of said vehicle or having

any interest whatsoever in the vehicle in question” and “no evidence or allegation that

[Lillian] borrowed the vehicle and then loaned it to the unidentified driver who

caused the accident.” Thus, Doby admits that she has no claim whatsoever against

Lillian Bivins. There is no dispute, therefore, that the Court’s order dismissing the

claims against Lillian was correct. The only issue is whether the trial court was

required to add Treneika to the suit before doing so.

      We agree with Doby that her motion to add a party was not moot. The case of

Ekokotu v. Pizza Hutt is distinguishable because in that case, the trial court

                                          5
determined that summary judgment was appropriate against the defendant because

there was insufficient evidence to support the plaintiff’s allegations. Ekokotu, 205 Ga.

App. at 536-537. Therefore the plaintiff’s attempt to add other parties to face baseless

claims was moot. Id. at 537 (5). Here, on the other hand, the plaintiff’s allegations

could have some basis as it appears that Treneika was the proper party and that if the

unknown driver was a family member Doby conceivably could have a claim under

the family purpose doctrine against Treneika for which Doby was not required to

respond in connection with Lillian’s motion for summary judgment. And the fact that

Treneika may be considered a joint tortfeasor with the unknown driver does not mean

that Doby is not authorized to sue the joint tortfeasor that she wishes to sue. Sloan v.

Southern Floridabanc Fed. S & L Assn., 197 Ga. App. 601, 602 (1) (398 SE2d 720)

(1990) (“plaintiff has a right of election as to which defendants plaintiff will proceed

against”) (citations omitted).

      Second, both the parties and the trial court applied the wrong standard to the

question of whether Doby should be allowed to add a party to the suit — that of

indispensable parties under OCGA § 9-11-14. The proper analysis is under OCGA

§ 9-11-21, which provides for misjoinder and nonjoinder of parties:



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      Misjoinder of parties is not ground for dismissal of an action. Parties
      may be dropped or added by order of the court on motion of any party
      or of its own initiative at any stage of the action and on such terms as are
      just. Any claim against a party may be severed and proceeded with
      separately.


See also Benedek v. Bd. of Regents of Univ. System of Ga., 332 Ga. App. 573, 575 (1)

(b) (774 SE2d 150) (2015) (“When a party wishes to add or drop a party by

amendment, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21,

which allows the dropping and adding of parties only by order of the court on motion

of any party.”) (citation and punctuation omitted); Marwede v. EQR/Lincoln Ltd.

Partnership, 284 Ga. App. 404, 405 (1) (643 SE2d 766) (2007) (“Generally, when a

plaintiff sues the wrong party, he or she must seek an order of court pursuant to

OCGA § 9-11-21 to drop the incorrect party and add the proper party.”) When ruling

on a motion to add a party, “the trial court may consider whether the new parties will

be prejudiced thereby and whether the movant has some excuse or justification for

having failed to name and serve the new parties previously.” Benedek, 332 Ga. App.

at 575 (1) (b) (citation and punctuation omitted). And “[a]n 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.

                                           7
229, 230 (306 SE2d 94) (1983); see also OCGA § 9-11-15 (c) (relation back of

amendments).

      We therefore reverse the trial court’s order to the extent that it found Doby’s

motion to add a party to be moot and remand to the trial court with instruction that

the court reconsider the merits of the motion to add Treneika based on its

discretionary determination of the relevant factors. See Benedek, 332 Ga. App. at 575

(1) (b). We affirm the grant of summary judgment to Lillian.

      Judgment affirmed in part, reversed in part, and case remanded with direction.

McFadden, P. J., and Bethel, J., concur.




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