FIRST-CITIZENS BANK & TRUST COMPANY v. ALAN KUGLAR AS OF THE ESTATE OF BLANCA ROHR

• Court: Court of Appeals of Georgia
• Decided: July 12, 2024
• Docket: A24A1397
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 12, 2024

The Court of Appeals hereby passes the following order:

A24A1396. ALAN KUGLAR AS EXECUTOR OF THE ESTATE OF BLANCA ROHR v. FIRST-CITIZENS BANK & TRUST COMPANY. A24A1397. FIRST-CITIZENS BANK & TRUST COMPANY v. ALAN KUGLAR AS EXECUTOR OF THE ESTATE OF BLANCA ROHR.

In this civil action, plaintiff First-Citizens Bank & Trust Company (“First- Citizens”) sued Blanca Rohr, Cory White, and Specialized Loan Servicing LLC (“SLS”), in connection with certain real property and loans secured by the property. Following the court’s entry of a November 30, 2023 order in the case, First-Citizens and Rohr’s widower each filed a notice of appeal. For the reasons set forth below, these appeals are dismissed. In the November 30, 2023 order, the trial court granted defendant SLS’s motion for summary judgment and dismissed SLS from the case. In addition, it granted First-Citizens’s motion for summary judgment as to its petition to set aside the cancellation of a security deed under Count 1 of its complaint. The next day, December 1, 2023, Alan Kuglar, Rohr’s husband, filed a notice of death and substitution of Rohr, advising that Rohr had died on June 26, 2023, and that Kuglar was waiting for the arrival of her death certificate before initiating probate proceedings. On December 27, 2023, Kuglar filed a notice of appeal from the November 30, 2023 order (docketed as Case No. A24A1396). First-Citizens also filed a notice of appeal from the November 30 order (docketed as Case No. A24A1397), noting that it did so in order to preserve its rights against Rohr. On January 24, 2024, First- Citizens moved in the trial court to dismiss Kuglar’s appeal on the basis that he had not been appointed executor of Rohr’s estate and was not a party to the lawsuit at the time he filed the notice of appeal. On February 16, 2024, Kuglar moved in the trial court to substitute himself, in his capacity as executor of Rohr’s estate, as a defendant in the underlying action. On March 28, 2024, the trial court granted Kuglar’s motion to substitute and denied First-Citizens’s motion to dismiss Kuglar’s appeal. First-Citizens now has moved in this Court to dismiss Kuglar’s appeal, contending that we lack jurisdiction. We agree. Rohr died in June 2023, and the action was suspended as to Rohr upon her death. See Roberts v. JP Morgan Chase Bank, Nat. Assn., 362 Ga. App. 375, 376 (868 SE2d 491) (2022) (“[O]n 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.”) (citation and punctuation omitted). “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.” South DeKalb Family Branch of YMCA v. Frazier, 236 Ga. 903, 905 (225 SE2d 890) (1976). Thus, the order on appeal was a nullity as to Rohr. Id. Under these circumstances, First-Citizens’s motion to dismiss the appeal in Case No. A24A1396 is GRANTED. The appeals in both Case Nos. A24A1396 & A24A1397 are DISMISSED and REMANDED to the trial court, with instructions to the court to vacate any orders as to Rohr that were entered after her death but before the substitution of Kuglar. The parties will have 30 days to file new notices of appeal from any orders then entered naming the proper parties.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/12/2024 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.