Nicole Ergle, as Next Friend and Attorney-In-Fact for Jerry Donald Ergle v. City of Atlanta ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 06, 2021
The Court of Appeals hereby passes the following order:
A21A1187. ERGLE v. CITY OF ATLANTA.
In this personal injury case, Nicole Ergle, acting as next friend and attorney in
fact for Jerry Donald Ergle, sued the City of Atlanta and others seeking damages for
pain and suffering, past and future medical expenses, and lost earnings based on
injuries received by Jerry, who was alive but incapacitated at the inception of the
action. After the City moved for summary judgment, but before the trial court ruled,
Jerry passed away, and a statement of the fact of his death was entered. No party was
substituted at that time. The trial court granted summary judgment to the City, and
Nicole filed this appeal on Jerry’s behalf. The City has now moved to dismiss the
appeal on the ground that the appeal is a nullity.
Although the plaintiff in this case is Nicole, she has at all times acted as next
friend and attorney in fact for Jerry, and the relief sought was in Jerry’s name for
Jerry’s injuries; she made no claim on behalf of the estate or any other party. See
Fuller v. Dillon, 220 Ga. 36, 43 (3) (136 SE2d 733) (1964) (noting the difference
between a “next friend” and the party and stating that next friend is not suing in her
individual capacity). See also Mathews v. Cleveland, 159 Ga. App. 616, 617-618 (284
SE2d 634) (1981).
A deceased person cannot be a party to legal proceedings. While the
death of a party does not abate a pending action where the cause of
action survives, nevertheless the effect of the death is to suspend the
action as to the decedent until someone is substituted for the decedent
as party to the proceedings. Until someone is properly substituted as a
party after the action is thus suspended, further proceedings in the case
are void as to the decedent. Since it appears that there is no living
[appellant] in this case and that none can be supplied by amendment or
by order of this court, it follows that the appeal is a nullity. [T]he
proceedings [in the trial court] subsequent to [Ergle’s] death . . . are
void, not merely voidable. On the death of a party, the action is
suspended and the suspension has the same temporary effect on the
rights of the parties as though the suit actually abated. The action
remains in abeyance and cannot proceed until someone is substituted for
the decedent, and the personal representative or heirs of the decedent are
not required to take notice of the pendency or defend the action until
they are made parties.
(Citations and punctuation omitted; emphasis supplied.) Ashburn Bank v. Gorday,
189 Ga. App. 565, 565 (377 SE2d 30) (1988), citing Allen v. Cloudburst
Manufacturing Co., 162 Ga. App. 188-189 (290 SE2d 529) (1982). See also Clark
v. Masters, 297 Ga. App. 794, 794 (678 SE2d 538) (2009). Compare SunTrust Bank
v. Travelers Prop. Cas. Co. of Am., 321 Ga. App. 538, 541 (740 SE2d 824) (2013)
(hearing the appeal and substituting a party after a motion was made in this Court
based on the party’s death after this Court docketed the appeal). Accordingly, the City
of Atlanta’s motion to dismiss is hereby GRANTED.
Ergle’s motion to substitute a party is DENIED as moot, in light of the void
trial court order and resulting nullity of this appeal. See Allen, 162 Ga. App. at 189
(failure to properly substitute a party in the trial court results in a void order, and the
appeal is a nullity, even after the former party’s death was suggested upon the record
before the trial court’s ruling).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/06/2021
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.