OCONEE COUNTY v. CANNON

In the Supreme Court of Georgia

Decided: February 1, 2021

S20G0584. OCONEE COUNTY v. CANNON et al.

PETERSON, Justice.

Ronald and Christy Cannon sued Oconee County after a

vehicle chase initiated by an Oconee County sheriff’s deputy ended

in their daughter’s death. The trial court granted the County’s

motion for summary judgment, holding that (1) the Sheriff of Oconee

County in his official capacity, not the County, was liable for the

deputy’s actions; and (2) the Cannons could not substitute the

Oconee County Sheriff in his official capacity as the defendant in

place of Oconee County because the statute of limitations had

expired and the relation-back doctrine embodied in OCGA § 9-11-15

(c) did not apply. The Court of Appeals affirmed the trial court’s

determination as to the proper defendant but reversed its ruling

that relation-back did not apply. See Cannon v. Oconee County, 353
Ga. App. 296 (835 SE2d 753) (2019). We granted the County’s

petition for a writ of certiorari to review the Court of Appeals’s

reversal. We hold that the application of the relation-back doctrine

depends on whether the proper defendant knew or should have

known that the action would have been brought against him but for

the plaintiff’s mistake, not on what the plaintiff knew or should have

known and not on whether the plaintiff’s mistake was legal or

factual. We vacate the decision of the Court of Appeals and remand

with direction to remand to the trial court for application of the

proper standard.

1. Background

On September 14, 2015, Deputy Golden Sanders with the

Oconee County Sheriff’s Office attempted to stop a Jeep SUV in

which Jessica Cannon was a passenger. The SUV accelerated and a

brief high-speed pursuit ensued, ending when the SUV collided with

a tractor-trailer. Both the driver of the SUV and Jessica were killed

in the crash. The Oconee County Sheriff, Scott Berry, met with

Jessica’s parents, Ronald and Christy Cannon, to inform them of

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their daughter’s death.

The Cannons sent a timely presentment of their claim to

Oconee County, the Oconee County Sheriff’s Office, and other

government officials. (The deputy’s patrol car was insured through

Oconee County’s insurance policy.) In January 2017, the Cannons

filed a wrongful death suit naming Oconee County as the lone

defendant. The complaint alleged that at the time of the accident,

Deputy Sanders “was acting in the course and scope of his

employment as a police officer with the Oconee County Sheriff’s

Office.” The County admitted that allegation in its answer. The

complaint also alleged that the County was liable for Deputy

Sanders’s acts and omissions under the doctrine of respondent

superior. The County responded with a general denial of that

allegation. The County’s answer did not raise an improper-party

defense, nor did it specifically assert that the County could not be

held liable because it was not Deputy Sanders’s employer.

In discovery, the County indicated that representatives of the

Oconee County Sheriff’s Office were “involved in gathering the

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information to answer Plaintiffs’ discovery requests.” The Cannons

made multiple requests for documents relating to “your employees,”

and the County responded to several of those requests by providing

information regarding employees of the Sheriff’s Office. The

Cannons deposed several employees of the Sheriff’s Office, including

Deputy Sanders and his supervisor. In July 2018, after the County

designated Sheriff Berry as its Rule 30 (b) (6) deponent, see OCGA

§ 9-11-30 (b) (6), the Cannons deposed the Sheriff; that deposition

served as both the County’s Rule 30 (b) (6) deposition and the

Sheriff’s personal deposition.

During the litigation, Sheriff Berry sent a letter to counsel for

the Cannons regarding an open records request they had sent to the

Sheriff’s Office requesting communications between the Sheriff’s

Office and the law firm representing the County. In his letter,

Sheriff Berry invoked the attorney-client privilege, stating that

communications between the County or Sheriff’s Office and the

County’s counsel were privileged communications, and that Terry

Williams, counsel for the County, not only represented the County

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in the present case but “also provides legal representation and

advice to the Oconee County Sheriff’s Office.” The letter repeatedly

referred to Terry Williams as “our attorney.”

In August 2018, the County filed a motion for summary

judgment, arguing among other things that Deputy Sanders was an

employee of the Oconee County Sheriff’s Office, not the County, and

thus the County could not be held vicariously liable for the deputy’s

alleged negligence. The Cannons then submitted a motion to

substitute Sheriff Berry in his official capacity as the defendant in

place of the County under OCGA § 9-11-15 (c), the relation-back

statute, in the event the trial court found him, and not the County,

to be the proper defendant.

The trial court granted the County’s motion for summary

judgment, concluding that the County could not be held vicariously

liable for Deputy Sanders’s actions because deputies are employees

of the Sheriff, and the Sheriff’s Office is independent from the

County. The trial court also denied the Cannons’ motion to

substitute. It found that OCGA § 9-11-15 (c) (2) was not satisfied

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because the Cannons were aware of Sheriff Berry’s existence and

knew that the Oconee County Sheriff’s Office was Deputy Sanders’s

employer; thus, as a matter of law, “there could be no mistake

concerning the identity of Sheriff Berry” as a proper party. The trial

court also found that there was “no evidence that Sheriff Berry had

or should have had knowledge” that the Cannons made a mistake

regarding his identity.

The Court of Appeals affirmed the trial court’s grant of

summary judgment to the County 1 but reversed the trial court’s

1 The Cannons argued that the lawsuit was governed by OCGA § 36-92-
1 et seq., which waives the sovereign immunity of a “local government entity”
for a loss arising out of the negligent use of a covered motor vehicle, and that
they could not sue Sheriff Berry in his official capacity because sheriffs’ offices
were not included in the definition of “local government entity.” See OCGA §
36-92-1 (3) (defining “local government entity” as “any county, municipal
corporation, or consolidated city-county government of this state”). The
Cannons also argued that suing a sheriff in his official capacity was the same
as suing the county where the sheriff was employed. The Court of Appeals
concluded that a county cannot be held vicariously liable for actions of deputies
and rejected the Cannons’ contention based on its holding in Davis v. Morrison,
344 Ga. App. 527, 531 (1) (810 SE2d 649) (2018) (holding the “term ‘local
government entity’ should [not] be construed so narrowly as to exclude sheriff’s
offices, which though separate from a county itself, nevertheless, clearly
perform governmental services on a local level.” (citation and punctuation
omitted)). See Cannon, 353 Ga. App. at 299-300 (1). The Court of Appeals
acknowledged that Davis was decided after the statute of limitations expired
in this case. See Cannon, 353 Ga. App. at 299 n.3. We did not grant certiorari
to review the holding in Davis. At least some Justices have since questioned

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denial of the Cannons’ motion to substitute Sheriff Berry, in his

official capacity, as a party defendant. See Cannon, 353 Ga. App.

296. In determining that the Cannons could substitute Sheriff Berry

after the expiration of the statute of limitations, the Court of

Appeals relied on the United States Supreme Court’s interpretation

of the federal relation-back rule (Rule 15 (c) of the Federal Rules of

Civil Procedure) set forth in Krupski v. Costa Crociere S.p.A., 560

U.S. 538 (130 SCt 2485, 177 LE2d 48) (2010). The Court of Appeals

concluded that “the Cannons made a deliberate but mistaken choice

to sue the County” based on their misunderstanding regarding the

proper party to sue under the applicable statute, and that Sheriff

Berry should have known he would be the party sued but for the

Cannons’ mistake because he and his office coordinated with the

County to defend the suit before the statute of limitations expired.

See Cannon, 353 Ga. App. at 302-303 (2). The court analogized the

Cannons’ case to Georgia cases prior to Krupski such as Fontaine v.

the correctness of Davis’s holding on this issue. See Mendez v. Moats, ____ Ga.
____ (____ SE2d _____) (Case No. S19G1095, decided Sept. 28, 2020) (Nahmias,
P. J., and Bethel, J., concurring).

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Home Depot, Inc., 250 Ga. App. 123 (550 SE2d 691) (2001), where

plaintiffs were allowed to substitute one corporate defendant for

another related entity after the statute of limitations expired, and

distinguished those situations from cases in which the plaintiff

“sought to add individual defendants who had no reason to believe

that the suit might be brought against them.” Cannon, 353 Ga. App.

at 303 (2) (emphasis in original). We issued a writ of certiorari to

consider whether the Court of Appeals properly relied on Krupski.

As we explain below, although our analysis differs from that of

the Court of Appeals, we also conclude that the United States

Supreme Court’s interpretation in Krupski of the federal rule upon

which our own relation-back statute is modeled offers the best

textual interpretation of OCGA § 9-11-15 (c). We thus agree with the

Court of Appeals that the Cannons made a mistake concerning the

identity of the proper defendant. But we disagree that the record ⸺

especially given the findings of the trial court ⸺ allows an appellate

court to conclude that Sheriff Berry, in his official capacity, should

have known he would be the party sued but for the Cannons’

8
mistake. We therefore vacate the decision of the Court of Appeals

and remand the case with direction to remand to the trial court to

apply the proper standard.

2. The most natural reading of OCGA § 9-11-15 (c) (2)
emphasizes the extent of the defendant’s knowledge, not the
nature of the plaintiff’s mistake, and encompasses all
mistakes – legal and factual – regarding the identity of the
proper party.

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

an existing action for abuse of discretion. See Western Sky Financial,

LLC v. Ga., 300 Ga. 340, 357 (3) (a) (793 SE2d 357) (2016). But a

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

governing legal principles.” Ford Motor Co. v. Conley, 294 Ga. 530,

538 (2) (757 SE2d 20) (2014). “[W]hen a plaintiff can satisfy the

statutory requirements for relation back of an amendment, set out

in OCGA § 9-11-15 (c), denying a motion for leave to amend the

complaint to add a defendant is an abuse of the trial court’s

discretion.” Callaway v. Quinn, 347 Ga. App. 325, 329 (819 SE2d

493) (2018) (citation and punctuation omitted).

When determining the meaning of a statute, we consider the

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text of the statute itself, because “[a] statute draws its meaning from

its text.” City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807

SE2d 324) (2017) (citation and punctuation omitted). In construing

a passage, “we must afford the statutory text its plain and ordinary

meaning,” view it “in the context in which it appears,” and read it

“in its most natural and reasonable way, as an ordinary speaker of

the English language would.” Deal v. Coleman, 294 Ga. 170, 172-173

(1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted).

“[F]or context, we may look to other provisions of the same statute,

the structure and history of the whole statute, and the other law —

constitutional, statutory, and common law alike — that forms the

legal background of the statutory provision in question.” Thornton

v. State, ___ Ga. ___, ___ (2) (851 SE2d 564) (2020) (citation and

punctuation omitted).

The General Assembly enacted the portion of the relation-back

statute at issue in this case in 1972, amending Georgia’s Civil

Practice Act to incorporate modifications made to the Federal Rules

of Civil Procedure in 1966. See Rich’s, Inc. v. Snyder, 134 Ga. App.

10
889, 891 (1) (216 SE2d 648) (1975).2 The text of the relation-back

statute provides as follows:

Whenever the claim or defense asserted in the amended
pleading arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date
of the original pleading. An amendment changing the
party against whom a claim is asserted relates back to the
date of the original pleadings if the foregoing provisions
are satisfied, and if within the period provided by law for
commencing the action against him the party to be
brought in by amendment (1) has received such notice of
the institution of the action that he will not be prejudiced
in maintaining his defense on the merits, and (2) 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).

Thus, this statute allows a plaintiff to substitute one defendant

for another after the claim would otherwise be barred by the statute

of limitations, provided that three conditions are met: (1) the claim

“arises out of the conduct, transaction, or occurrence set forth . . . in

the original pleading,” (2) the proposed defendant, before the statute

2 Georgia’s relation-back statute has been amended following the 1972
amendment, but the changes are minor and do not alter the substance of the
statute. Compare Ga. L. 1972, p. 689, § 6 with OCGA § 9-11-15 (c).

11
of limitations expired, “received such notice of the institution of the

action that he will not be prejudiced in maintaining his defense on

the merits,” and (3) the proposed defendant, before the statute of

limitations expired, “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 Deleo

v. Mid-Towne Home Infusion, Inc., 244 Ga. App. 683, 684 (536 SE2d

569) (2000). The parties in this case do not dispute that the first and

second conditions are met. This case turns on the third condition.

Because “[t]he language of OCGA § 9-11-15 (c) is modeled after

Federal Rule of Civil Procedure 15 (c),” and the slight differences

between the two are not material to the issue presented here, we

may “look for guidance in decisions of the federal courts interpreting

and applying Rule 15 (c)” to interpret OCGA § 9-11-15 (c). Tenet

Healthsystem GB, Inc. v. Thomas, 304 Ga. 86, 88 (816 SE2d 627)

(2018) (citation and punctuation omitted). 3 In Krupski, which

3 Federal Rule of Civil Procedure 15 (c) (1), which establishes the
federal relation-back doctrine, pertinently provides:
An amendment to a pleading relates back to the date of the original

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interpreted and applied Rule 15 (c), the plaintiff sued the incorrect

corporate entity for injuries sustained while on a cruise, not

realizing that the entity that owned or controlled the cruise ship

where she was injured was a different, yet closely related, entity.

Krupski, 560 U.S. at 556. When she sought to substitute the correct

corporate entity after the statute of limitations expired, the district

court found that she “had not made a mistake concerning the

identity of the proper party” because “the word ‘mistake’ should not

be construed to encompass a deliberate decision not to sue a party

whose identity the plaintiff knew before the statute of limitations

had run.” Id. at 545. But the United States Supreme Court

concluded that the third condition of Rule 15 (c) was met because

relation-back “depends on what the party to be added knew or

pleading when: . . . (B) the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out —
or attempted to be set out — in the original pleading; or (C) the
amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15 (c) (1) (B) is satisfied and
if . . . the party to be brought in by amendment: (i) received such
notice of the action that it will not be prejudiced in defending on
the merits; and (ii) knew or should have known that the action
would have been brought against it, but for a mistake concerning
the proper party’s identity.

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should have known, not on the amending party’s knowledge.” Id. at

541, 557.

Like the text of the federal relation-back statute, the text of

OCGA § 9-11-15 (c) focuses clearly on the proposed defendant’s

knowledge – “[a]n amendment changing the party against whom a

claim is asserted relates back . . . if . . . the party to be brought in by

amendment . . . (2) knew or should have known . . . .” (emphasis

supplied). This text demonstrates that the proper question in

determining whether the third condition of relation-back is met is

not whether the plaintiff knew or should have known the identity of

the proper defendant, but whether the proper defendant knew or

should have known that the action would have been brought against

him but for the plaintiff’s mistake. See Krupski, 560 U.S. at 548.

Accordingly, “[i]nformation in the plaintiff’s possession is relevant

only if it bears on the defendant’s understanding of whether the

plaintiff made a mistake regarding the proper party’s identity.” Id.

“For purposes of that inquiry, it would be error to conflate knowledge

of a party’s existence with the absence of mistake.” Id.

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 The County urges that a plaintiff’s mistake must be “factual” 4

to be considered a “mistake concerning the identity of the proper

party,” and that “legal” mistakes, such as the Cannons’ mistake in

believing they could not sue the Sheriff under the applicable statute,

do not qualify as mistakes under OCGA § 9-11-15 (c) (2). For

relation-back to apply, there must be “a mistake concerning the

identity of the proper party.” OCGA 9-11-15 (c). And “making a

deliberate choice to sue one party instead of another while fully

understanding the factual and legal differences between the two

parties is the antithesis of making” such a mistake. Krupski, 560

U.S. at 549 (emphasis supplied). But the County’s argument

contains a critical error: it over-emphasizes the word “identity” at

the expense of the word “proper.” Although “identity” considered in

isolation may usually be a factual issue, an inquiry as to which party

is “proper” carries with it a wide range of legal considerations as well

as factual ones. Thus, although the mistake in this case was not a

4 The County defines a “factual” mistake as one where the plaintiff sues
one defendant while intending to sue another, or where the defendant’s name
in the original complaint is a misnomer.

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factual mistake about the “identity” of potential defendants, it was

still a mistake about which party was the “proper” defendant.

The statute’s focus on the extent of the defendant’s knowledge

also indicates that the kinds of mistakes about identity that qualify

under the statute are broader than the County suggests. Again, the

defendant’s knowledge, not the nature of the plaintiff’s mistake, is

the key factor in determining whether relation-back applies. It is not

true that “any time a plaintiff is aware of the existence of two parties

and [deliberately] chooses to sue the wrong one, the proper

defendant could reasonably believe that the plaintiff made no

mistake.” Krupski, 560 U.S. at 549. Accordingly, both legal and

factual mistakes can be mistakes concerning the identity of the

proper party.5

5 We are not the only state with a relation-back statute modeled after
federal Rule 15 (c) to follow Krupski’s analysis as the most textually sound.
See, e.g., Flynn v. Campbell, 402 P3d 434, 439-440 (Ariz. 2017) (departing from
state precedent to adopt Krupski’s Rule 15 (c) analysis ⸺ focusing the inquiry
on what the defendant, rather than the plaintiff, knew or should have known,
and recognizing both legal and factual mistakes as cognizable ⸺ because the
Krupski analysis was “more consistent with the [Arizona] Rule’s text and
purpose”).

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 The County also contends that interpreting the word “mistake”

to encompass legal as well as factual mistakes would create a rule

so broad that it would inhibit the purpose of the statutes of

limitation to “provide finality in litigation[,]” Bryant v. Allstate Ins.

Co., 254 Ga. 328, 331 (326 SE2d 753) (1985), and allow the relation-

back exception to the statute of limitations to swallow the rule. But

policy considerations are not a valid reason to depart from the best

reading of the statutory text, and we already determined above that

the best reading encompasses both legal and factual mistakes. The

County’s argument also overlooks the two limiting conditions in

OCGA § 9-11-15 (c) (2): that the defendant must either know or have

reason to know that the lawsuit would have been brought against

him, but for the plaintiff’s mistake; and that the plaintiff must have

made a “mistake” as opposed to a deliberate choice to sue one party

over another with full knowledge of the factual and legal differences

between the two. Far from allowing relation-back whenever a

plaintiff makes a strategic error and then changes its mind, these

conditions significantly limit the circumstances where relation-back

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may be permitted.

We acknowledge that the Court of Appeals has at times applied

analysis of Georgia’s relation-back statute that is inconsistent with

our analysis above by focusing on the plaintiff’s knowledge rather

than the knowledge of the proposed new defendant. See, e.g.,

Valentino v. Matara, 294 Ga. App. 776, 778 (2) (670 SE2d 480)

(2008); Deleo, 244 Ga. App. at 684-685; Harding v. Godwin, 238 Ga.

App. 432, 434-435 (518 SE2d 910) (1999). To the extent that these

or other cases of the Court of Appeals have applied analysis

inconsistent with what we articulate here, that analysis is

disapproved.

3. Relation-back applies in this case if Sheriff Berry in his
official capacity knew or should have known before the
statute of limitations expired that the Cannons would have
brought their lawsuit against him but for their mistake
concerning the identity of the proper party.

Under the above interpretation of OCGA § 9-11-15 (c) (2), to

determine whether relation-back applies in this case, we ask

whether Sheriff Berry in his official capacity, as the proper

defendant, knew or should have known that the Cannons would

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have brought their lawsuit against him but for their mistake

concerning the identity of the proper party. The first inquiry is

whether the Cannons made a mistake concerning the identity of the

proper party. Although the Cannons made a deliberate choice to sue

Oconee County rather than suing Sheriff Berry in his official

capacity, the record suggests that they did not fully understand the

legal differences between the two.6 Because the Cannons did not

believe that Sheriff Berry in his official capacity could be a proper

party, in that sense they made a mistake as to the identity of the

proper party.

Therefore, the remaining question in this case is whether

6 In their response to the County’s motion for summary judgment, the
Cannons argued that Oconee County and not Sheriff Berry was the proper
entity to sue under the applicable statute, and that suing Sheriff Berry in his
official capacity was the same as suing the County. The County did not contest
the Cannons’ claim about their state of mind in suing the County; in fact, the
County contended, as it now contends on appeal, that the Cannons could not
substitute Sheriff Berry as the defendant because the Cannons made a legal
mistake about whom to sue rather than a mistake about the Sheriff’s identity.
Moreover, the Court of Appeals concluded that “the Cannons made a deliberate
but mistaken choice to sue the County, rather than Sheriff Berry, in his official
capacity, based upon a misunderstanding of the proper local government entity
to sue for vicarious liability based upon the conduct of a county deputy sheriff.”
Cannon, 353 Ga. App. at 302 (2). The County agrees that conclusion is
supported by the record.

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Sheriff Berry in his official capacity knew or should have known

before the statute of limitations expired that he would have been

named as the defendant in the original lawsuit but for the Cannons’

mistake. It is clear from the record that Sheriff Berry in his official

capacity knew about the lawsuit even before its initiation because

he received a copy of the presentment. But the record is not clear

whether Sheriff Berry knew or should have known that the Cannons

would have sued him but for their mistake.7 The trial court’s order

denying the Cannons’ motion to substitute found no evidence “that

Sheriff Berry had or should have had knowledge that [the Cannons]

made any mistake whatsoever.” But we cannot simply apply those

findings to the law we clarify today, because the trial court made the

finding prior to this opinion’s clarification of the knowledge that is

7 On remand, if the trial court determines that Sheriff Berry in his
official capacity actually knew that the Cannons would have sued him but for
their mistake, then the Cannons’ amendment to substitute the Sheriff as the
defendant in place of the County would relate back. If the trial court
determines that the Sheriff in his official capacity did not know, however, it
must then determine whether the Sheriff in his official capacity should have
known. This determination might require the trial court to decide the extent
to which Georgia law imputes knowledge of the law to government officials in
their official capacity; such officials in their official capacity are the
government.

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relevant and the kinds of mistakes that qualify under the statute.

See Fulton County v. Ward-Poag, ___ Ga. ___, ____ (2) (a) (849 SE2d

465) (2020) (“If a trial court significantly misapplies the law or

clearly errs in a material factual finding, we may affirm the trial

court’s exercise of discretion only when we can conclude that, had

the trial court used the correct facts and legal analysis, it would have

had no discretion to reach a different judgment.” (citation and

punctuation omitted)). The extent to which the trial court considered

the relevant question in making its finding regarding Sheriff Berry’s

knowledge is thus unclear. 8 We therefore vacate the decision of the

Court of Appeals with direction to vacate the trial court decision and

8 In fact, it is unclear whether the trial court’s statement was actually a
finding of fact. The trial court also found that the plaintiffs could not have
made a mistake concerning the identity of the proper party as a matter of law;
if the trial court believed no mistake existed, its finding regarding Sheriff
Berry’s knowledge may have reflected its legal conclusion rather than an
evidentiary finding of fact. Moreover, the court indicated that in order to find
that the Sheriff had the required knowledge, it would have to impute to the
Sheriff legal expertise superior to that possessed by the Cannons’ attorneys.
But just because the Cannons’ attorneys did not realize they made a mistake
does not necessarily negate the possibility that Sheriff Berry knew or should
have known that the action would have been brought against him but for the
mistake, especially if Georgia law were to require such imputation to Sheriff
Berry in his official capacity regardless of whether he had actual knowledge as
a matter of fact.

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direct the trial court to make findings consistent with the

appropriate test for application of relation-back as set forth in this

opinion. 9

Judgment vacated and case remanded with direction. All the
Justices concur.

9 Based upon its holding, the Court of Appeals did not address the
Cannons’ alternate enumeration of error that the trial court should have
granted their motion for sanctions under OCGA § 9-11-37 (d) and precluded
the County from raising an improper party defense. Cannon, 353 Ga. App. at
298, 303 (3). The Court of Appeals on remand may address the discovery
sanction issue before remanding this case to the trial court; or, if the Court of
Appeals determines that the issue is too connected with issues to be settled by
the trial court on remand, it may elect to wait and address the discovery
sanction issue only if the case comes before it again on a subsequent appeal.

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