Howe v. Roberts

Carley, Chief Judge. On February 8, 1980, appellant-plaintiff purchased a home from appellee-defendant William Douglas Roberts & Associates, Inc. (Corporation). The Corporation extended to appellant an express warranty “for a period of at least 1 year following closing.” On February 4, 1981, appellant mailed a registered letter detailing the problems that he had experienced with the house. This letter was received on February 9, 1981. On February 5, 1987, appellant filed a breach of warranty suit in magistrate court. The suit was filed against appellee-defendant William Douglas Roberts, who is the president of the Corporation. On March 11, 1987, however, appellant amended his pleadings so as to add the Corporation as a party-defendant to the proceedings. The magistrate court ultimately found in favor of appellant as against the Corporation, but it dismissed the action as against Roberts. After a de novo appeal to the state court, a counterclaim was filed against appellant for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The state court granted summary judgment in favor of appellees as to appellant’s breach of warranty claim and denied appellant’s motion to dismiss the Yost counterclaim. Appellant appeals from these orders. 1. It was not error to grant summary judgment in favor of Roberts. The record shows that the warranty was extended by the Corporation, not by Roberts, and that appellant offered no evidence whereby a piercing of the corporate veil would be authorized. See Amason v. Whitehead, 186 Ga. App. 320 (367 SE2d 107) (1988). 2. Summary judgment was granted in favor of the Corporation based upon the running of the statute of limitation. Appellant enumerates this ruling as error. “[T]he six year statute of limitation applies and commence[s] to run from the date that [the Corporation] was notified by [appellant] of the alleged defects in the construction . . . .” Benning Constr. Co. v. Lakeshore Plaza Enter., 240 Ga. 426, 429-430 (241 SE2d 184) (1977). Assuming without deciding that appellant’s initiation of his action on February 5, 1987, was within the statute of limitation, the Corporation was not added as a party-defendant to the action until March 11, 1987, at which time the statute of limitation had clearly run. Accordingly, unless the amendment adding the Corporation as a defendant relates back to the date of the filing of the original com [144] plaint, the Corporation’s statute of limitation defense would be good. The Civil Practice Act is not authority for the relation-back of the amendment. OCGA § 9-11-15 (c) does authorize, under certain circumstances, the relation-back of an amendment which changes or adds a party-defendant to an action. However, the legislature has determined that it is the provisions of OCGA § 15-10-40 et seq. which “shall govern civil proceedings in the magistrate court” and that such proceedings “shall not be subject to Chapter 11 of Title 9, the ‘Civil Practice Act.’” OCGA §§ 15-10-40; 15-10-42. The Civil Practice Act cannot possibly be construed as a statute which is in pari materia with OCGA § 15-10-42. OCGA § 15-10-42 expressly states that “[proceedings in the magistrate court shall not be subject to Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’ ” (Emphasis supplied.) “The two statutes are not to be construed together. They are not in pari materia. ‘Statutes in pari materia are those which relate to the same person or thing or the same class of person or thing, or which have a common purpose.’ [Cit.]” Maynard v. Thrasher, 77 Ga. App. 316, 319 (48 SE2d 471) (1948). Regardless of the legislative intent underlying enactment of the Civil Practice Act, the legislative intent underlying the subsequent enactment of OCGA § 15-10-42 is to provide that there is no commonality between OCGA § 9-11-1 et seq. and the applicable procedure in magistrate courts. Moreover, even assuming that the two statutes were in pari materia, it would nevertheless be erroneous to construe them so as to find the provisions of OCGA § 9-11-15 (c) to be applicable in magistrate court proceedings. “ ‘[Statutes in pari materia may not be resorted to where the language of the statute under consideration is clear . . . .’ [Cit.]” Butterworth v. Butterworth, 227 Ga. 301, 304 (3a) (180 SE2d 549) (1971).The language of OCGA § 15-10-42 that magistrate court proceedings shall not be subject to the Civil Practice Act could not be any clearer. There is a general right to amend pleadings in the magistrate court which predates and is not dependent upon any provision of the Civil Practice Act. See Sikes v. Hurt & Cone, 18 Ga. App. 197 (1) (89 SE 181) (1916). However, the present case does not concern the general right to amend pleadings in the magistrate court. It concerns the relation-back of an amendment adding a party-defendant. OCGA § 9-11-15 (c) cannot serve as authority for the relation-back of such an amendment in a magistrate court proceeding unless the clear and unambiguous provisions of OCGA § 15-10-42 are ignored. Other than the inapplicable provision of OCGA § 9-11-15 (c), no authority has been cited for holding that such an amendment relates back. Our own research indicates that no such authority exists. If there is no authority for the relation-back of such an amendment in a magistrate court proceeding, then the amendment of March 11, 1987, pursuant to [145] which the Corporation was added as a party-defendant after the statute of limitation had run, is totally ineffective. The state court correctly granted the Corporation summary judgment based on the running of the statute of limitation. 3. Appellant’s motion to dismiss the Yost counterclaim which was added by amendment in the state court was denied. This ruling is enumerated as erroneous. Appellant urges that the counterclaim should have been dismissed because it had not been asserted as a compulsory counterclaim in the magistrate court. As noted in Division 2, there is a general right to amend in the magistrate court. Accordingly, if there was no impediment to amending to add the Yost counterclaim in the magistrate court, there was no impediment to amending to add the Yost counterclaim in the de novo appeal proceedings in the state court. See generally Smith v. Goodwin, 84 Ga. App. 319 (1) (66 SE2d 169) (1951). We know of no such impediment. Accordingly, the trial court did not err in denying appellant’s motion to dismiss. Judgments affirmed. Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.