But, as our appellate courts have held on numerous occasions, when a party seeks to amend his complaint to add a new party,OCGA § 9–11–15(a) must be read in pari materia with OCGA § 9–11–21, which requires a court order to add or drop parties. E.g., Clover Realty Co. v. Todd, 237 Ga. 821, 822, 229 S.E.2d 649 (1976); Odion v. Varon, 312 Ga.App. 242, 244–245(3), 718 S.E.2d 23 (2011); Valdosta Hotel Props. v. White, 278 Ga.App. 206, 209–210(1), 628 S.E.2d 642 (2006); El Chico Restaurants, Inc. v. Transp. Ins. Co., 235 Ga.App. 427, 428(2), 509 S.E.2d 681 (1998); Dollar Concrete Constr. Co. v. Watson, 207 Ga.App. 452, 453, 428 S.E.2d 379 (1993); Aircraft Radio Systems v. Von Schlegell, 168 Ga.App. 109, 111(2), 308 S.E.2d 211 (1983). As we have explained,
DECIDED: DECEMBER 2, 1999 Certiorari to the Court of Appeals of Georgia — 235 Ga. App. 427. Dye, Tucker, Everitt, Wheale Long, Thomas W. Tucker, Rogers Hardin, C. B. Hardin, Glover Blount, Percy J. Blount, Arnall, Golden Gregory, Karen B. Bragman, Robins, Kaplan, Miller Ciresi, Thomas J. Gallo, Morris, Manning Martin, Lewis E. Hassett, Hull, Towill, Norman, Barrett Salley, Patrick J. Rice for appellants. Bell James, John C. Bell, Jr., James L. Bentley III, for appellee.
The trial court did not explicitly dismiss the Sheriff from the case, as he never was properly added as a party. See El Chico Restaurants, Inc. v. Transp. Ins. Co. , 235 Ga. App. 427, 428 (2), 509 S.E.2d 681 (1998) (a court order is required to add a party); accord OCGA § 9-11-21. Rather, read as a whole, the trial court's dismissal order (i) implicitly denied Nusz's motion to substitute the Sheriff as a defendant on the ground that she did not provide him with the notice required by OCGA § 36-11-1 and (ii) dismissed her amended complaint on that basis.
We disagree. See El Chico Restaurants v. Transp. Ins. Co., 235 Ga. App. 427, 430(2) ( 509 S.E.2d 681) (1998) ("a void suit cannot be amended"), aff'd, Transp. Ins. Co. v. El Chico Restaurants, 271 Ga. 774 ( 524 S.E.2d 486) (1999). Under OCGA § 9-11-15(a), "[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order."
Here there was no valid action pending when Baldwin sought to add Wisenbaker as a defendant. See generally El Chico Restaurants v. Transp. Ins. Co., 235 Ga. App. 427, 430 (2) ( 509 S.E.2d 681) (1998); Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 ( 359 S.E.2d 362) (1987); Wagner, supra at 501-502 (2). Furthermore, we note that as an uninsured motorist insurance carrier, Allstate is allowed to assert any defense that would be available to Wisenbaker.
The committee first argues that the trial court erred by failing to discuss the earlier bankruptcy court order denying summary judgment. In El Chico Restaurants v. Transportation Ins. Co., 235 Ga. App. 427, 428-430 (2) ( 509 S.E.2d 681) (1998), we held that a trial court erred in dismissing a complaint based on the plaintiffs' failure to obtain leave to add parties. A federal district court had previously granted permission to add parties before the case was transferred to state court, and the state court neither reconsidered nor acknowledged the district court's order.
Only a handful of cases address this issue, all of which support giving effect to the first amended complaint in this case. See El Chico Restaurants v. Transp. Ins. Co., 235 Ga. App. 427, 509 S.E.2d 681 (Ga. Ct. App. 1998), aff'd on other grounds, 271 Ga. 774, 524 S.E.2d 486 (Ga. 1999); Craig, 80 S.W.3d at 458, 460; Hansen, 399 A.2d at 323. In El Chico Restaurants, the plaintiff originally filed a class action suit against several defendants in state court.