*1 82 Cunningham any questions. did In this case would not answer
Hart answer questions. only invoking privilege questions, Fur- on some Cunningham, elicit- ther, .the defendant did cross-examine counsel for testimony The trial court followed favorable to defendant. procedure Supreme 3 Lawrence Footnote of Court set out opinion pages circumstances, we no find error the in cross-examine. at these 424-425. right procedure no restriction on defendant’s followed and charge argument on that the
3. There is not merit to defendant’s property burden-shifting. unexplained possession recent, of stolen (281 (1) (c), particularly at State, 57 v. Williamson 248 Ga. 512) (1981). supplement that filed able filed 4. Defendant a brief City required Although At- so, see Wilson to do counsel. lanta, 460) (1987), will we address argues First, in his brief. defendant two additional errors the indictment were stolen. The indictment items describe what in that it failed to defective charged burglary. In an defendant with allege description, burglary, value indictment for the State need ownership goods actually Da- have valid indictment. stolen to (3) (227 Lastly, State, de- vis general Upon grounds. of the entire rec- a review fendant raises the beyond a ord, reasonable doubt from the evidence adduced at have found we find trier fact could rational trial that defendant Virginia, guilty burglary. U. S. Jackson v. of the offense of SC 61 LE2d Judgment Sognier, J., Banke, J.,P. concur. affirmed. Decided November Rehearing 20, 1989 denied December appellant. Martin, John pro Bowen,
Richard se. Attorney, appellee. Mumford, Robert F. District PRICE. ETHRIDGE et al. v. A89A1195. v. MIMS.
A89A1260.PRICE
Per curiam.
permanently injured
severely
in an
Price
Hattie Eileen
May numerous
automobile collision on
She filed suit
Transportation
including
Georgia Department of
defendants
(DOT)
complaint
May
subsequently
9, 1985,
amended
but
incapac
plaintiff acting
show her
ity
friend
her
mother as
next
due to
damage.
Wyndald C.
from brain
moved
add as defendants
Ethridge,
Mims,
L.
were all retired
Earl
and W. Wilson
who
employees,
designing,
alleging
negligence DOT
ing
their
construct
maintaining
road which
the collision occurred contrib
damages.
injuries
uted to her
DOT filed a motion
*2
judgment,
granted by
grounds
sover
which was
the trial court on
appeal.
of
Dept.
eign immunity,
Price v.
and this court affirmed on
of
(356
Transp.,
SE2d
holding
grant
Supreme
reversed,
that
On
of
the
certiorari
Court
protection
provided
in
insurance
had
the claims raised
the
for
been
immunity
sovereign
suit; and that the issue of
had been
ad
decided
(357
versely
Dept.
Safety,
to
Martin v.
DOT in
Public
Ga. 300
of
569) (1987)
presented.
binding
SE2d
and was
on
facts
Price
(361
Dept.
Transp.,
Ethridge,
party
they
granted
Mims
defendants was
copies
complaint
February
were served with
amended
of
being
1988,this
their first
notice of
1983 collision. After some dis-
covery summary employees,
motion was filed
all three
granted
Tyre.
Ethridge
and was
of
favor
but
Mims
denied to
granted
applications
interlocutory
This court
review of
Ethridge
Tyre
A89A1260,
A89A1195and of Price
and has
appeals.
appeals previously
consolidated the
For other
entertained
(359
Wright Contracting
case,
Co.,
Co.,
see Price v.
183 Ga.
181 Ga.
406) (1987);
(351
SE2d
Price v. Reeves Constr.
655) (1986).
SE2d
alleged
Ethridge
1. In Case No. A89A1195 that
in his ca-
pacity
Design Engineer
negligent
designing,
as State Road
in not
having
project
those who worked under him
loca-
road
injured
guardrails,
tion on which she was
with more extensive
a me-
opposing
slope
dian barrier between the
lanes and more
moderate
prevent
plung-
the fill sections of the
so as to
vehicles from
steep
down a
embankment. She further
that
as DOT
Engineer
authority
system
guardrail
District
had extend
bridge approach
negligently
the
failed
where the collision
occurred
do
so.
retired
DOT in
retired
from
ser-
entirety
their DOT
during
men
that
in 1979. Both
assert
judg-
of their
the exercise
protected them
Georgia
vice the law of
Spalding County, Nelson v.
See,
e.g.,
immunity.
ment
official
Webb,
915) (1982); Hennessy v.
2. in concurrence Either the reason stated in Judge Sognier special concurrence for the reason stated Benham, granted to Judge summary have should Tyre. trial court’s denial Accordingly, and we reverse the summary judgment to these defendants. the trial court’s appealed
3. Case No. A89A1260 Price has W. Mims. Re- grant summary Wilson to the defendant regard in this reveals depositions view of the submitted and affidavits super- had administrative engineer Mims as DOT’s area resident area, supervi- four-county in and vision over all jobs construction area. His con- sory responsibility in the same for all road maintenance responsibilities seeing struction that the contractors consisted of effectively among the properly allocated paid personnel and the DOT de- the actual projects. did not include Thus duties roadway sign project. Moreover, he was never construction of the opened was not because it involved maintenance of subsequent April 1, 1981, his retirement on Novem- to traffic until ber performed 1, 1978, after the road and no until maintenance opened. Accordingly, concerned, is this is one of insofar as Mims contributory negli- negligence, rare instances issues of those gence when proximate jury to court rather than a cause are any negligence showing and, decide the absence of evidence part agree Mims, we with the trial court that he has satisfied evidentiary support judgment. burden so as an award 288) (1988), Trammell, Edwards Accordingly, grant cases and of cited therein. trial court’s we affirm the summary judgment to Mims. Judgment Judgment No. Case A8A1260. reversed affirmed Birdsong, Carley, Sognier, J., Deen, No. J.,
Case A89A1195. C. P. Beasley, specially. McMurray, JJ., J., Banke, Benham and P. concur P. Pope, specially part. part J., J., concur dissent Judge, concurring specially. Sognier, join per opinion specially I curiam and concur for the fol- lowing reasons. Having immunity determined that is waiver effective
against employees, the DOT we must consider contention now their two-year that Price’s action them was barred statute undisputed limitation § under OCGA It 9-3-33. is that Price was ren- permanently incompetent by accident, dered “[m]inors persons legally incompetent who are because mental retardation illness, mental accrues, who are such when the cause of action shall be disability bring entitled to the same time after their removed prescribed persons.” action as for other OCGA 9-3-90. do argument by Ethridge adopted with the made Judge Benham’s concurrence because Price filed suit tolling DOT, of the statute of limitation ceased. (4a) (183 Neither Cline v. Lever Bros. 63) (1971), special concurrence, cited Benham’s nor those by Tyre, proposition. cases cited stand for that The *4 portion merely proposition cited of Cline stands for that the the suit brought by timely by next friend in that case was and barred the not plaintiff incapacitated. limitation, statute of because the was More- over, this court has held that the statute of will run limitation against represented by litigation guardian a minor in next friend 341) litem, ad Martin, Barnum v. (1975); (207 see also Jones &c. Ga. Accident Hartford 613) (1974), “[sjince parties in and that the enumerated all applica- [OCGA§ 9-3-90] class, are in the follows law same it that the persons applicable equally other to the classes ble to a minor is Corp., Prods. v. Certain-Teed Whalen enumerated.” 686, Consequently, it law is established incompetent against tolled remains that the statute limitation by guardian. despite next friend or an action the institution of Tyre put Ethridge policy arguments for if forth Even the any change holding clear, meritorious, the statute otherwise my Accordingly, Legislature. in wisdom of the better left to the Tyre correctly Ethridge motions view the trial court denied the ground the statute of for issue on against during incapacity, Price’s and the action limitation was tolled them was
timely filed. Tyre Pope Judge meet do not adding statutory requirements back of amendments for relation (c). Judge Pope parties opinion, In his 9-11-15 as set forth OCGA Tyre adding Ethridge relates has concluded that the amendment delay adding good them, back because Price had the under the factors are reason for parties prejudiced the addition. not be added would statutory analysis language, Those is deficient. two that “to among simply the trial court those be considered Sys- determining amendment,” Radio whether to allow the Aircraft (2) Schlegell, App. 109, 111 tems v. Von (1983), Pope’s pointed opinion. commencing are that Other factors out against period provided by action “within the law (1) party brought received him to be has such amendment prejudiced in action he will not be notice of the institution of the maintaining (2) merits, should have knew or defense on identity proper concerning that, known party, but for a mistake against brought § 9- him.” the action would have been OCGA (c). 11-15 undisputed Ethridge and had retired from It is that both years occurred, there would DOT before the accident and thus accident, known have been no reason for either of to have them to have received of this action notice of institution concerning knowledge DOT, identity or to have that “but for mistake brought proper party, would have been action support fact, [them].” In of motion Id. affidavit summary judgment, Tyre specifically he had “no averred that prior couple perhaps knowledge February of this of weeks law suit until years served, after 1, 1988,” when he almost three my view, institution of the action. That averment unrebutted. statutory preconditions necessary therefore, back have relation met. my were enti- Nevertheless, view both summary judgment tled the merits. *5 allegation negligence Tyre specific, as
The was demon- by plaintiff’s interrogatories. strated that to The claim was answers existing guard- Tyre’s “[i]t was Mr. decision as to whether not Tyre roadway replaced negli- rail on the be or extended. Mr. should gently guardrail subject bridge approach failed to have on the ex- leaving prevent tended from so to automobiles dropping high, steep negli- down the embankment.” This claim gence clearly design maintenance, relates to rather than to or con- Tyre’s support struction. of his unrebutted affidavit mo- summary although judgment tion for Engineer he was the District shows pro- the Tifton office of the DOT from 1975 to ject completed open years was several after not to traffic until retirement and he never involved maintenance of was project. negligence Tyre Moreover, even if claim of design had to it related or construction could have survived sum- mary judgment, Tyre job since his affidavit also averred that his any did not for him call to have actual contact with the construction input Oakridge project, of the West Road he had no into the participation beyond overseeing and no in the construction some ad- Accordingly, ministrative tasks. nying Tyre’s I believe the trial court erred de- summary judgment. motion for again negligence against Ethridge, toAs Price’s claims of her interrogatory specific, allege Ethridge are answers “and/or persons supervision negligently designed subject those under his bridge approach (emphasis supplied) consisting . to create . . defects” high guardrail, embankment, of a lack of sufficient lack of median drop barriers, settlement, failure to correct a caused and failure to prevent pooling correct the road surface of water. It clear that design defects, last two “defects” but maintenance Ethridge responsibility failures. had no As to maintenance. alleged design support defects, in his affidavit in motion summary judgment Ethridge during averred that his tenure as State Design Engineer Road from December 1974 his retirement De- drafting designing projects, cember 1978 he did no actual “ordinary [his office] business routine in would have called Oakridge plans West to have certified the Office Engineering specifi- meeting design Services as standards and largely cations [DOT],” that his time “was oversee- devoted timely completion plans personnel,” and to the allocation of Oakridge project designed and that the West “in Road accor- policies projects dance with the [DOT] were in for state aid my effect view, at the time.” In this uncontroverted evidence rebuts allegations negligence Ethridge Price’s him as to and entitles summary judgment. Accordingly, summary I would reverse the trial court’s denial of reaching basis, on that without summary judg- supporting remaining arguments put forth them as ment. Judge Presiding Deen state that I am authorized to Birdsong join in this concurrence. concurring specially. Judge, Benham, ap- majority decision that concur employees, appellants
propriate for all three DOT appellee Mims. *6 special Judge Sognier’s that the neces- concurrence I with sary statutory preconditions § 9-11-15 back under OCGA for relation (c) summary However, I believe that not met the case at bar. granted appellants Ethridge judgment should have been appellee limitation While of defense. Mims on their statute (OCGA incompetency § 9-3- the of limitation Price’s tolled statute 90), upon period of the institution an of limitation commenced the by friend, This held that her court has action Price’s next mother. giving action, where, a rise to of a result of occurrence the cause as incapable acting person mentally physically of becomes carrying prosecuting claim, his business and himself on capac- regains the until time as he statute of limitation is tolled ity such appointed guardian himself, or until such time as a to act actually him, bona does such time as one fide and acting act for until actually Cline v. him suit on behalf. as next friend files 63) (1971); (4a) (183 City App. Co., 22 Lever Bros. of Barrett, Thus, Atlanta v. Ga. two-year personal injury governing suits statute of limitation day 26, 1985, the mother of commenced the case at bar on June incapacitated incapacitated of filed suit as next friend her adult daughter. Appellant Tyre appellee Mims were not served process February appellant Ethridge until was not served February years 6, 1988, after Price’s next until more than Ms. 2-1/2 Judge Sognier’s states, Since, friend filed suit. concurrence statutory preconditions necessary for rela- Prices did not meet summary adding parties, judgment tion should back of amendments granted Tyre, Ethridge, ground that the have on and Mims expired.1 statute of limitation had reaching
In statute of limitation does not conclusion litigation incapacitated person represented next run friend, an Judge Sognier’s special upon Barnum relies concurrence (1975), Martin, which relies majority The trial court affirms that judgment. awarded I, therefore, concur Mims on a different only in A89A1260. ground, upon Co., Jones v. 613) (1974). Accident &c. Hartford brought through Barnum, In a suit her next minor years giving required friend four notice to mu- before ante litem nicipality. “[a]ny deciding Barnum, In doubt this court stated that plaintiff run minor that who sues statute limitation will not through in Jones u. next is resolved our decision friend disability [supra], Co., &c. Acc. where it was held that ‘the Hartford infancy only party ... removed when the reaches his affected ” majority.’ recognized Jones, lawful the issue in proviso permitting eighteen- court, was “whether or . . an . year-old person married to maintain action and settle a claim an disability infancy requires his own name abolishes . . . and eighteen-year-old person injury married to commence his action for person [OCGA § 9-3-33].” the went within the The time limitation of court nothing to hold that it not. Jones case do did The had with the commencement of statute limitation when a minor brought guardian, improper suit next friend and Barnum’s reli- perpetuated. light precedents ance on it should not be (Cline existence at the time Barnum was decided v. Lever Bros. supra, City supra), precedents Barrett, Atlanta v. held guardian that the statute limitation when commenced or next incapacitated person, friend this filed suit behalf would take opportunity Barnum. overrule Judge Carley I am authorized to state that Chief Beas-
ley join opinion. in this Judge, concurring part part. dissenting in in and Pope, join per opinion. I in However, Divisions and 3 of I the curiam disagree summary judgment granted have been should to defend- Ethridge Tyre by Judge Sognier ants and either for the reasons stated special by special in his rence. concurrence or in Benham his concur- Judge Sognier against 1. I the that the action defend- by applicable ants was not barred the statute of limitation but not the reasons in stated than concurrence. Rather a new ac- against employees, tion the named be believe this action should adding parties, treated as an amendment controlled (c) brought §§ OCGA 9-11-21, 9-11-15 and an since action had seeking recovery injury by for Price’s her mother as next friend. See (4a) (183 App. Cline v. Lever Bros. 124 Ga. against This action was first commenced DOT other and the named May deposed 9, defendants on DOT’s 13, 1985, 1985. On December operations division director and learned for the first time that Ethridge Tyre employees Mims, and in- were the who were former bridge volved of the maintenance and/or April approach 1986, 16, Price filed occurred. On where the collision party Ethridge defendants, but Mims, as to add and her motion this motion was not ruled upon by after remand trial court until Supreme 1987, to do 28, with direction so. October Court on naming January Mims, entered order On the trial court party defendants; Feb- all three were served and ruary 1988. plead- in the amended the claim or defense asserted
“Whenever conduct, transaction, forth or occurrence set out of the arises original pleading, attempted the amendment be forth set original pleading. An amendment of the relates back changing the date party against relates back to whom is asserted a claim provisions original foregoing pleadings if satis- the date commencing provided by period fied, if law for within the (1) party brought him amendment has to be action he will not the action that be received such notice of the institution of prejudiced maintaining (2) merits, knew on the defense identity concerning that, for a should have known but mistake proper party, brought him.” the action would have been (c). statutory Although language refers to OCGA 9-11-15 “changing” adding parties party, it has been held to include Stephens, App. well. Cobb v. 186 Ga. determining “Among the trial factors to be considered court party will whether to allow prejudiced the new be the amendment are whether thereby justi- has whether the movant some excuse having party previously. fication for name failed to new serve Schlegell, Systems [Cits.]” Radio Von Aircraft parties Price moved the new as soon as she learned their to add delay acting identities, motion was trial court’s this Tyre complain through no fault of her own. they years litigation nine suit was active for two months before they served, knew about were is no of record that there evidence they prior they it to that time. have not shown that preclude prejudiced by delay harmed or so as to amend relating motion for ment’s back the institution of the action. On evidentiary summary judgment as to these issues burden Stephens, 651; u. them as movants. Cobb at accord Contractors, Black & White Constr. Co. v. Bolden *8 (2) (371 summary Consequently, I believe that properly was denied as to this issue. denying disagree, however, sum- 2. I that court erred in the trial (Divisions mary judgment 2 to on the merits. concurrence.) Firstly, Ethridge Judge Sognier’s special 3 argue of they their in- because that were entitled to design roadway project volvement limited ernment is without ers and construction of the gov- policies, judicial to of execution DOT’s and the branch of authority separation government. pow- the doctrine under policy agency establish for an executive argues design- that it was not her involve intent to this court road employees ing, seeking recovery its but that she is from DOT and and negligent design, their of the road construction maintenance guidelines. The demonstrated their failure to adhere to their own guidelines apparently to which Price refers a booklet contained “Highway Design High- Operational entitled Related to Practices way Safety,” February report of a AASHTO Traffic Committee dated adopted were DOT as standards to be which constructing highway system. However, followed booklet have been the state appeal may and, indeed, is not not included the record on only Moreover, mention of the introduced evidence. regulations deposition employee AASHTO testified, was in DOT who of a contradiction, while standards fol- without these were they conjunction highways lowed for state were not used in county Appellants’ roads. was was evidence that the road issue here designed highway system, county, built state undisputed. (defendant-movant) summary judgment presents
“When apparently plaintiff’s destroying action, evidence mo- cause plaintiff burden, vant has met his and the then to the burden shifts present any support theories, exist, alternative if such which would (Citations genuine his action and within which issues remain.” of fact omitted.) punctuation Hills, End v. West Investments App. 274, 277 Price failed meet her burden showing employees DOT its did not follow their own guidelines, they obligated so, or that to do when she did Hinkley Bldg. come forward with rebuttal evidence. See Material &c., Merchants ground upon not, however, This was the sole Price’s action design, negligent based, as she also contended that proximate and maintenance of the was the cause of the auto- generally question body fact-finding mobile collision. “It for a questions negligence negligence determine negligence and whose and what only proximate injury. is the involved sole cause of It is negligent susceptible where conduct of but one infer- question ence that it becomes of law for to determine.” the court (Citations omitted.) punctuation Duggan, Lewis 73) (1987). Although Sognier’s special 563, 565 allegations against Tyre only concurrence holds relate extending project, question maintenance of the the it is that the clear guardrail project during on the con- could either occur *9 Moreover, record project. of the phase struction or maintenance such that as Engineer and District the DOT that shows including District personnel supervise all was to “responsibility that Ethridge averred Likewise, although personnel.” construction shows the record projects, actual drafting no designing he did De- Rail Location the “Guard submitted Ethridge signed and that ap- Engineer Highway State project to the drawings for this tails” entire set and submitted signed that he July proval Fur- project began. before the Engineer Highway to the State plans Office, he Design State Road thermore, head of the capacity design- engineers, including people of 105 organization an “supervised Tyre and although Consequently, ers, support staff.” draftsmen and drafting, design actually performed may not have alleges negligence, plaintiff project which tasks on the for the capacities, supervisory in their they clearly responsible, were “In tasks. these perform did and workers who engineers, draftsmen as a mat- a not mandate case the evidence does the instant by jury evidence of the law; scrupulous sifting weighing ter of properly denied trial court required. my opinion] the [In Missroon, App. Bragg v. 186 Ga. this basis].” [on 564) (1988). (368 SE2d however, trial court urge, also because, even summary judgment denying
erred in their motions part was on their any negligence they negligent, were assuming that injured. in which Price proximate cause of collision in- of an proximate cause may more than one be “[t]here 154, 157 Lewis, App. Church’s Fried Chicken jury. [Cit.]” Equip. v. Business Eubanks See also Center, 161 Ga. other two her car was struck injured only
that she was when steep embankment vehicles, 22 feet down the plunged but when she provide employees failed approach because DOT’s bridge She fur- shoulder. sloping road guardrail, recovery gradually area or a the collision a median barrier had there been ther contended that negli- concurrent occurred, respective, would never and that have injuries. her employee contributed to gence of each negli- from resulting injury for an “It is no defense to an action if injury, to cause contributed gence intervening negligence cause without an efficient employees] was negligence of DOT [the ‘(I)f original occurred. injury which the would not have [Cits.] in- anticipated or foreseen reasonably have negligent actor could negli- intervening act consequences, then tervening act and its conse- liability for the actor from gence original will not relieve the question.’ jury is a intervening act. That from the quences resulting must be de- Eubanks, opinion, this issue my 203. In supra at [Cit.]” jury. termined
4. I would reject Ethridge Tyre’s likewise assertion that hav Wright Co., Price v. Contracting ruled in and Price v. Constr. Reeves 655), project contractors involved with the could not be held design liable as a matter of law for its and construc they tion simply because rules following the established DOT, this court is regard bound to reach the same conclusion in them. On contrary, those general cases turned on the rule that “ ‘where the work of independent completed, contractor turned to, owner, over accepted by the contractor is not liable to persons third for damages injuries subsequently suffered reason Wright Reeves at 241. As work, 597; *10 of the condition of the . . .’” at “ Wright, pointed further out in supra at ‘when 597-598: the work is (the contractor) finished accepted by employer [DOT], [the] liability generally former ceases and employer becomes answerable for damages may thereafter accrue from the defec (Cits.)” tive Wilmock, (Cit.)’ condition of the work. Accord [Cit.]” French, Inc. v. (1) (363 789) (1987). 259 SE2d If the evidence is sufficient to show negligence misfeasance and part employees DOT’s in undertaking construct or maintain the roadway project, jury may also personally find them liable. Ayers, Howell v. 129 Ga. App, 899 SE2d 5. Ethridge object also to the fact that under OCGA § 36-33-4, municipal or local government employees only are liable for those official performed acts “oppressively, maliciously, corruptly or authority which, without of law” them, were it also applicable to would have entitled them judgment as a matter of law. the Georgia cases, suit, including the instant which have considered the liability of the state employees and counties and their have con sistently applied the v. ordinary See, standard of e.g., care. Dept. Transp., 257 Thigpen County v. supra; McDuffie Bd. Education, (335 112) Curtis v. Cobb (1985); Ga. 59 SE2d County, O’Neal, (333 595) (1985); Ga. 673 County Toombs v. SE2d (330 95) (1985); Ga. 390 Cooper, Swofford Ga. App. 624) Early County Fincher, (1987); 602) If higher apply, standard is to it must come from the legislature. Consequently, I believe the trial court properly denied Tyre. defendants
I am authorized to state that Presiding Judge McMurray and Presiding Judge join Banke in this concurrence and dissent. 5, 1989 December Decided 20, 1989
Rehearings denied December Perry Attorney Michael, General, Execu- Bowers, H. J. Michael Deputy Attorney Kohler, General, Attor- Harrison W. Senior Assistant tive Attorney ney General, Matson, Assistant General, F. Roland Ethridge, Attorney Beverly General, Martin, for B. Assistant Mims. Terry Marlowe, Burt, Price. Burt, P. J. Burt & Hilliard cases). (two A89A1228, v. YOST A89A1241.TOROK Judge. Benham, appellee’s grant appeal motion to the trial court’s This follows A89A1228) (case appellants’ personal injury no. lawsuit dismiss abusive A89A1241) (case comply litigation failure to lawsuit no. timely We reverse. entered the trial court. order August. 5, 1988, after the was entered on The order at issue give parties, hearing who had to the trial court held a been unable to formulate a direction pre-trial joint or- order. The trial court’s pleaded special damages among things, der, must be other noted that appellants particularity file with a under OCGA 9-11-9 and ordered special damages by “pleading The order did. dollar amount.” appellee give appellants’ compliance. October, filed a deadline comply appellants’ with the order motion to dismiss due to failure to *11 complaint Appellants pleadings. to amend amended their their days plead special damages by 14, ten dollar amount on November hearing The trial after the trial court held a on the motion to dismiss. January granted appellee’s 9, court motion to dismiss on previously, time did not set a As noted the trial court’s order pleadings. appellants The Civil within which had to amend their pleading provides party may “[a] as a Practice Act amend any matter of course and without leave of court at time before (a). entry pretrial con- § of a While the records order.” OCGA 9-11-15 party, proposed pre-trial each tain several neither orders submitted pre-trial signed trial court and order record contains a (b). appellants’ amendment, filed Thus, entered. See OCGA 9-11-16 prior timely proper entry pre-trial order, to the of a Rushing Ellis, the trial court. See should have been considered appellants Since complaint court, trial court the trial amended their as ordered obey failing dismissing appellants’ the trial erred in court’s order. lawsuit for Specialists, Graham v. Dev.