Ketcham v. Franklyn Gesner Fine Paintings, Inc.

Sognier, Judge.

Franklyn Gesner sued Ray Ketcham, claiming fraud in the sale of art work allegedly painted by Martin Johnson Heade. During discovery it became apparent that the purchaser was not Gesner but Franklyn Gesner Fine Paintings, Inc. Ketcham’s motion to dismiss upon learning that Gesner was not the purchaser of the art work was denied. The trial court then granted a motion to substitute Franklyn Gesner Fine Paintings, Inc. in place of Gesner as party plaintiff. The trial court denied Ketcham’s motion to strike the substitution and his renewed motion to dismiss. Ketcham brings this interlocutory appeal.

The purported authority for appellee’s motion for substitution was OCGA § 9-11-17 (a) (Code Ann. § 81A-117), which provides: “Every action shall be prosecuted in the name of the real party in interest. An executor, an administrator, a guardian, a bailee, a trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may bring an action in his own name without joining with him the party for whose benefit the action is brought; and, when a statute so provides, an action for the use or benefit of another shall be brought in the name of the state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

OCGA § 9-11-17 (a) (Code Ann. § 81A-117) does not in and of itself authorize the substitution and joinder of parties, nor does it provide any method by which substitution or joinder may be accomplished. It merely postpones any dismissal of the action for lack of prosecution by the real party in interest by allowing the erring party a reasonable time to remedy its mistake by utilizing the appropriate procedure as provided in the relevant statute. OCGA § 9-11-17 (a) (Code Ann. § 81A-117) should thus be read as parenthetically referring to those other statutes which do provide the proper procedures either for joining or for substituting parties.

Appellee was not added as a party by amending but instead sought by its motion to substitute itself for the original named plaintiff, Franklyn Gesner. However, the only statute authorizing such substitution of parties is OCGA § 9-11-25 (Code Ann. § 81A-125), which limits the use of substitution to instances involving the death or incompetency of a party, the transfer of interest in an action, or the transfer of an action to a successor in public office. None of these four instances are applicable to the situation here. Nelson v. Sing Oil Co., 122 Ga. App. 19, 21 (176 SE2d 227) (1970).

Decided December 1, 1983 Rehearing denied December 19, 1983

Nor is the recent Supreme Court decision Block v. Voyager Life Ins. Co., 251 Ga. 162 (303 SE2d 742) (1983) applicable here. Voyager involved an action brought in the name of a party that was not a legal entity. The Supreme Court held that where such a party plaintiff is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party in interest, the misnomer may be corrected by way of amendment. Id. In contrast, the instant action was brought by Franklyn Gesner, an entity legally distinct from Franklyn Gesner Fine Paintings, Inc. As an individual fully capable of suing appellant in his own right, “Franklyn Gesner” cannot be seen as a “reasonably recognizable” misnomer for the corporate real party in interest here. Furthermore, in Voyager the Supreme Court specifically looked to amendment as the means of correcting that appellant’s mistake and never addressed the use of substitution which faces our court in the instant case.

OCGA § 9-11-21 (Code Ann. § 81A-121) states that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Appellee did not use this procedure and its attempt to use substitution of parties instead was inappropriate and ineffective for want of statutory authority. Nelson supra. See Lamas Co. v. Baldwin, 120 Ga. App. 149, 150 (1) (169 SE2d 638) (1969); Massengale v. Eva Cook Realtor, 155 Ga. App. 757, 758 (1) (272 SE2d 730) (1980). Where a rule speaks clearly and without ambiguity, this court will not ignore the plain language before us. Hence, the trial court erred in granting appellee’s motion to substitute and in denying appellant’s motion to strike the substitution and dismiss the action against Franklyn Gesner. However, the striking of the “substituted” party plaintiff, Franklyn Gesner Fine Paintings, Inc., and dismissal of the case instituted by Franklyn Gesner is not such a judgment on the merits as should bar the corporate appellee from bringing further action on any claim for relief it may assert against appellant.

Judgment reversed.

Shulman, C. J., Deen, P. J., Banke, Birdsong and Carley, JJ, concur. Quillian, P. J., McMurray, P. J., and Pope, J., dissent. Richard C. Freeman III, Gary G. Agnew, for appellant. Harmon W. Caldwell, Jr., Wade H. Watson III, for appellee.