(Ga. L. 1966, p. 609, § 17; Ga. L. 1968, p. 1104, § 6; Ga. L. 1985, p. 656, § 1; Ga. L. 2020, p. 377, § 2-7/HB 865.)
Cross references.- Appointment of guardian for incompetent person by judge of probate court generally, Ch. 5, T. 29.
Appointment of guardians ad litem in probate proceedings, § 53-3-19.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 17, see 28 U.S.C.
Law reviews.- For article, "Synopses of 1968 Amendments to the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article discussing Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976), holding Georgia's notice requirement for year's support unconstitutional prior to 1977 revision, see 13 Ga. St. B.J. 85 (1976). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "Georgia's 'Door-Closing' Statute: Who Bears the Burden?," see 24 Ga. St. B.J. 141 (1988). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For note, "The Great Escape: How One Plaintiff's Sidestep of a Mandatory Arbitration Clause Was Applied to a Class in Bickerstaff v. SunTrust Bank," see 68 Mercer L. Rev. 539 (2017).
JUDICIAL DECISIONSANALYSIS
General Consideration
Purpose of section.
- Function of O.C.G.A. § 9-11-17 is simply to protect the defendant against a subsequent action by the party actually entitled to recover. Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459, 288 S.E.2d 711 (1982); North Am. Life & Cas. Co. v. Riedl, 209 Ga. App. 883, 434 S.E.2d 820 (1993), rev'd on other grounds, 264 Ga. 395, 444 S.E.2d 736 (1994).
Failure to name legal entity as party.
- This section does not control when there is a failure to name a legal entity as a party plaintiff. Cook v. Computer Listings, 137 Ga. App. 526, 224 S.E.2d 501 (1976).
Finding that plaintiff, a joint venture contractor, was not a legal entity did not authorize dismissal of the case. Pursuant to O.C.G.A. § 9-11-17, reasonable opportunity should have been allowed for the legal entities composing the joint venture to ratify or join the action, or for the real parties in interest to be joined or substituted in accordance with O.C.G.A. § 9-11-19. Watson/Winter Joint Venture v. Milledge, 224 Ga. App. 395, 480 S.E.2d 389 (1997).
Realignment of defendant as plaintiff.
- Order of court is required under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to realign a defendant as a plaintiff. Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976).
When suit is brought in name which is neither that of natural person, nor corporation, nor partnership, the suit is a mere nullity, and therefore, with no party plaintiff, there is no case in court, and consequently nothing to amend by. Mathews v. Cleveland, 159 Ga. App. 616, 284 S.E.2d 634 (1981).
Even action brought in name of improper party is amendable. El Chico Restaurants, Inc. v. Transportation Ins. Co., 235 Ga. App. 427, 509 S.E.2d 681 (1998).
Plaintiff properly allowed to remain party despite plaintiff's dissolution at time suit filed.
- Court of appeals of Georgia found no merit to the appealing accountants' claim that the trial court erred when the court allowed one of its clients to remain as a party to the litigation because the plaintiff had been administratively dissolved at the time the plaintiff filed suit against the accountants as: (1) the accountants never moved to dismiss that client as a party plaintiff; (2) any issue as to their presence in the suit was not preserved for review; and (3) even if the claim was preserved, the trial court properly concluded that the Florida corporation's reinstatement related back to the time of the plaintiff corporation's dissolution nunc pro tunc. Fowler v. Atlanta Napp Deady, Inc., 283 Ga. App. 331, 641 S.E.2d 573 (2007).
Motion to dismiss when prosecution is by improper plaintiff.
- When a motion to dismiss pursuant to O.C.G.A. § 9-11-12(b)(6) is made insofar as the motion is based on the prosecution of a suit by one not the proper party plaintiff, such a motion is to be treated like a matter in abatement in that the erring party, rather than having judgment entered against the party, is now simply precluded from proceeding with the suit until the error has been corrected by the substitution of the proper party plaintiff. Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859, 344 S.E.2d 742 (1986).
Section applies to special statutory proceedings.
- O.C.G.A. § 9-11-17 applies to special statutory proceedings such as an appeal from the board of equalization to superior court. Spencer v. Lamar County Bd. of Tax Assessors, 202 Ga. App. 742, 415 S.E.2d 332 (1992).
When the individual members of a city board of education were purportedly parties to an action by amendment and by acknowledgment of service, a trial court's order of substitution was required to make the proper defendant, a city school district, a party substituted in their place; accordingly, the plaintiff's attempt to name the school district a defendant by mere amendment was ineffective and the school district was therefore never served as required by statute. Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367 (2002).
Institute was a real party in interest.
- Trial court did not err in finding that an institute was a real party in interest in an action on a promissory note and on account because the institute provided some evidence that the institute was the real party in interest when the institute produced and authenticated the institute's statement of the debtor's account showing that the debtor owed the institute, and not any other party, the principal sum of $11,142.92, and the debtor did not provide any evidence that the account had been assigned to a specific third party. Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013).
Dealer's representational standing to claim tax refund.
- Because a dealer had statutorily granted representational standing under amended O.C.G.A. § 48-2-35.1 to recover wrongfully paid sales taxes from the state on behalf of the dealer's customers, and the amendment was procedural and could be applied retroactively, the dealer had standing to file a claim for any taxes for periods before the statute was amended. New Cingular Wireless PCS, LLC v. Dep't of Revenue, 308 Ga. 729, 843 S.E.2d 431 (2020).
Cited in Lewis v. Storch, 120 Ga. App. 85, 169 S.E.2d 726 (1969); Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Hogan v. Maxey, 121 Ga. App. 490, 174 S.E.2d 208 (1970); Smith v. Singleton, 124 Ga. App. 394, 184 S.E.2d 26 (1971); Durham v. Spence, 228 Ga. 525, 186 S.E.2d 723 (1972); Walker v. Joanna M. Knox & Assocs., 132 Ga. App. 12, 207 S.E.2d 570 (1974); Southeast Transp. Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 212 S.E.2d 638 (1975); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Walsey v. Lockhart, 136 Ga. App. 624, 222 S.E.2d 141 (1975); J.C. Penney Co. v. West, 140 Ga. App. 110, 230 S.E.2d 66 (1976); Billas v. Dwyer, 140 Ga. App. 774, 232 S.E.2d 102 (1976); Kimball Bridge Rd. v. Everest Realty Corp., 141 Ga. App. 835, 234 S.E.2d 673 (1977); Colodny v. Dominion Mtg. & Realty Trust, 142 Ga. App. 730, 236 S.E.2d 917 (1977); Clark v. Board of Dental Exmrs., 240 Ga. 289, 240 S.E.2d 250 (1977); Central Mut. Ins. Co. v. Wofford, 145 Ga. App. 836, 244 S.E.2d 899 (1978); Star Jewelers, Inc. v. Durham, 147 Ga. App. 68, 248 S.E.2d 51 (1978); Commercial Union Ins. Co. v. Ed V. Collins Contracting, Inc., 147 Ga. App. 183, 248 S.E.2d 220 (1978); Rives E. Worrell Co. v. Key Sys., 147 Ga. App. 383, 248 S.E.2d 686 (1978); E.C. Long, Inc. v. Brennan's of Atlanta, Inc., 148 Ga. App. 796, 252 S.E.2d 642 (1979); Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 256 S.E.2d 108 (1979); Mathews v. Saniway Distribs. Serv., 152 Ga. App. 286, 262 S.E.2d 494 (1979); Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980); Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 267 S.E.2d 786 (1980); Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981); Foy v. Lewis, 248 Ga. 234, 282 S.E.2d 295 (1981); Troup v. Troup, 248 Ga. 662, 285 S.E.2d 19 (1981); Jordan v. Goff, 160 Ga. App. 636, 287 S.E.2d 640 (1981); Dorsey Heating & Air Conditioning Co. v. Gordon, 162 Ga. App. 608, 292 S.E.2d 452 (1982); Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769, 294 S.E.2d 495 (1982); Loftis v. Johnson, 249 Ga. 794, 294 S.E.2d 511 (1982); Block v. Voyager Life Ins. Co., 251 Ga. 162, 303 S.E.2d 742 (1983); Dover Place Apts. v. A & M Plumbing & Heating Co., 167 Ga. App. 732, 307 S.E.2d 530 (1983); Bowen v. Waters, 170 Ga. App. 65, 316 S.E.2d 497 (1984); Krawagna v. H & S Liquor, Inc., 176 Ga. App. 816, 338 S.E.2d 284 (1985); Strauss Fuchs Org., Inc. v. LaFitte Invs., Ltd., 177 Ga. App. 891, 341 S.E.2d 873 (1986); Gibbs v. Green Tree Acceptance, Inc., 188 Ga. App. 633, 373 S.E.2d 637 (1988); Smeltzer v. Bank of Fitzgerald, 192 Ga. App. 747, 386 S.E.2d 406 (1989); Dover Realty, Inc. v. Butts County Bd. of Tax Assessors, 202 Ga. App. 787, 415 S.E.2d 666 (1992); Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992); Bundrage v. Standard Guar. Ins. Co., 211 Ga. App. 288, 439 S.E.2d 92 (1993); Johnson v. Hardwick, 212 Ga. App. 44, 441 S.E.2d 450 (1994); Allanz Life Ins Co. v. Riedl, 264 Ga. 395, 444 S.E.2d 736 (1994); Hall v. Hall, 241 Ga. App. 690, 527 S.E.2d 288 (1999); Sudler v. Campbell, 250 Ga. App. 537, 550 S.E.2d 711 (2001); Moon v. Mercury Ins. Co. of Ga., 253 Ga. App. 506, 559 S.E.2d 532 (2002); Blair v. Bishop, 290 Ga. App. 721, 660 S.E.2d 35 (2008); Powers v. CDSaxton Props., LLC, 285 Ga. 303, 676 S.E.2d 186 (2009); In the Interest of W. L. H., 314 Ga. App. 185, 723 S.E.2d 478 (2012); Sampson v. Ga. Dep't of Juvenile Justice, 328 Ga. App. 733, 760 S.E.2d 203 (2014); Preferred Women's Healthcare, LLC v. Sain, 348 Ga. App. 481, 823 S.E.2d 569 (2019), cert. denied, No. S19C0773, 2019 Ga. LEXIS 687 (Ga. 2019); Ultra Group of Companies, Inc. v. Alli, 352 Ga. App. 71, 833 S.E.2d 751 (2019), cert. denied, No. S20C0336, 2020 Ga. LEXIS 421 (Ga. 2020); Wilson v. Wernowsky, Ga. App. , 846 S.E.2d 101 (2020).
Real Party in Interest
Similarity to defense in O.C.G.A. § 9-11-19. - Real-party-in-interest objection is similar to the defense of failure to join an indispensable party under O.C.G.A. § 9-11-19. North Am. Life & Cas. Co. v. Riedl, 209 Ga. App. 883, 434 S.E.2d 820 (1993), rev'd on other grounds, 264 Ga. 395, 444 S.E.2d 736 (1994).
If appellant's summary judgment motion is considered as raising a real party in interest defense, the motion was properly denied. An objection on this ground may be made at any time up to and including a trial on the merits, which the appellant did in the appellant's motion in limine and motion for a directed verdict. No case, however, should be dismissed for this reason 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. Accordingly, if the appellant renews this objection, the trial court should consider this issue under O.C.G.A. § 9-11-43(b). Golden Pantry Food Stores, Inc. v. Lay Bros., Inc., 266 Ga. App. 645, 597 S.E.2d 659 (2004).
Time for bringing objection to party.
- Real-party-in-interest objection may be made at any time up to and including a trial on the merits. Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459, 288 S.E.2d 711 (1982); Allman v. Hope, 200 Ga. App. 137, 407 S.E.2d 107 (1991).
Dismissal inappropriate following appointment of administrator.
- Even though the plaintiff was not the administrator of the plaintiff's spouse's estate at the time the plaintiff filed the complaint, a motion to dismiss should not have been granted since the plaintiff had been appointed administrator at the time the defendants brought the motion. Gordon v. Walker, 224 Ga. App. 861, 482 S.E.2d 489 (1997).
Action not to be brought by one with derivative interest.
- This section requires that an action be brought in the name of the real party in interest, rather than by one whose right is derivative. Rose Hall, Ltd. v. Holiday Inns, Inc., 146 Ga. App. 709, 247 S.E.2d 173 (1978).
Failure to establish.
- Appellees failed to present any evidence establishing their status as the current holders of an interest in the contract at issue, despite the appellant's allegation that the contract between them has since been assigned by appellees to a third party; therefore, since the appellant's objection that appellees are not the real parties in interest had yet to be addressed, the trial court erred in granting the appellees' motion for summary judgment. Sawgrass Bldrs., Inc. v. Key, 212 Ga. App. 138, 441 S.E.2d 99 (1994).
Spouse's claim that the spouse had standing as a real party in interest to bring a nuisance claim because the spouse shared an equitable interest in a mobile home park on the damaged property based on the improvements and repairs the spouse had made to the property during the time the spouse had been married to the plaintiff was rejected as no property rights were created in the assets of the marriage while the parties were still married and a trial court's ability to determine the equitable interests of spouses in real property was based on the ancillary jurisdiction the court specifically maintained in divorce actions. Reidling v. City of Gainesville, 280 Ga. App. 698, 634 S.E.2d 862 (2006).
Plaintiffs, purported members of a church's board of directors, filed suit to terminate the pastor's employment. As plaintiffs had five months' notice from the trial court that the plaintiffs had the burden to prove that the plaintiffs had the capacity to bring the suit, the plaintiffs suit was properly dismissed when the plaintiffs failed to meet the plaintiffs' burden. Victory Drive Deliverance Temple, Inc. v. Jackson, 298 Ga. App. 563, 680 S.E.2d 588 (2009).
Trial court erred in granting an assignee summary judgment in an action against a debtor to collect the amount owed on a credit card account agreement the debtor allegedly entered into with an assignor because the assignee failed to show that the assignee was entitled to file suit to recover the outstanding debt against the debtor pursuant to O.C.G.A. § 9-11-17(a); the assignee relied on the affidavit of the assignee's agent and business records custodian of its credit card accounts to show that the assignor transferred to the assignee all rights and interests to the debtor's account, but the affidavit failed to refer to or attach any written agreements that could complete the chain of assignment from the assignor to the assignee, and although the assignee contended that the debtor did not raise the assignee's failure to present a valid assignment in the trial court, the record reflected that that issue was squarely before the trial court because the assignee directly addressed the debtor's defense under § 9-11-17 in the assignee's motion for summary judgment, referring to the affidavit to show that it was the assignee. Wirth v. Cach, LLC, 300 Ga. App. 488, 685 S.E.2d 433 (2009).
Prosecution of action by assignee.
- When a transfer of interest, such as an assignment, takes place prior to commencement of an action, this section controls and requires that the action shall be prosecuted in the name of the real party in interest. Employers' Liab. Assurance Corp. v. Keelin, 132 Ga. App. 459, 208 S.E.2d 328 (1974).
An assignment for valuable consideration, with notice to the debtor, imposes on the debtor an equitable and moral obligation to pay the assignee. Thus, an insurance company which had notice of an assignment of proceeds but nevertheless paid all benefits to the insureds, rather than the assignee, was liable to the assignee. Santiago v. Safeway Ins. Co., 196 Ga. App. 480, 396 S.E.2d 506, cert. denied, 196 Ga. App. 909, 396 S.E.2d 506 (1990).
In a lender's assignee's suit against guarantors on a promissory note, there was sufficient evidence that the assignee was the real party in interest even if the assignee's officer's affidavit was not based on personal knowledge because the borrowers made judicial admissions as to the assignee's right to proceed. Hamilton State Bank v. Kelly Capital Invs., LLC, 335 Ga. App. 252, 779 S.E.2d 757 (2015).
Trial court erred in substituting a new plaintiff pursuant to O.C.G.A. § 9-11-25 because the alleged transfer of the mortgage company's interest in the security deed to the bank did not occur during the course of the instant litigation as the alleged transfer of the interest in the security deed occurred some two years earlier in 2009; and, thus, O.C.G.A. § 9-11-25 did not apply to the case, and O.C.G.A. § 9-11-17(a) should have been applied as the transfer of an interest took place prior to the commencement of the action; accordingly, the trial court's denial of the motion to vacate the order substituting the bank as the plaintiff had to be reversed. Rogers v. Deutsche Bank Nat'l Trust Co., 343 Ga. App. 655, 808 S.E.2d 233 (2017).
Assignment not established.
- Trial court erred in dismissing an employee's breach of contract complaint against an employer on the ground that the employee was not a real party in interest under O.C.G.A. § 9-11-17(a) because there was no showing that the employee assigned the employee's right, title, and interest in the parties' employment contract to a limited liability company (LLC); the employee assigned payment under the agreement to the LLC but did not assign the employee's right, title, and interest under the employment agreement, and for the contract to be enforced by the LLC, the assignment would have to be in writing. Phillips v. Selecto Sci., 308 Ga. App. 412, 707 S.E.2d 615 (2011).
Failure to name county as party.
- Appellate court could not address complaints about a county when the county was not a named party to the case, and the plaintiff did not seek to join the county in the proceedings below. Strykr v. Long County Bd. of Comm'rs, 277 Ga. 624, 593 S.E.2d 348 (2004).
Foreign corporations.
- Foreign corporation which has been dissolved pursuant to the law of its state of incorporation may assert a cause of action in Georgia after it has been dissolved, depending upon the governing strictures of the foreign state. Tillett Bros. Constr. Co. v. DOT, 210 Ga. App. 84, 435 S.E.2d 241 (1993).
Bankruptcy trustee real party in interest.
- Bankruptcy trustee was the real party in interest regarding a tort action of the debtor regardless of the trustee's purported assignment to the debtor of the right to prosecute the action while the trustee retained legal title to it. United Techs. Corp. v. Gaines, 225 Ga. App. 191, 483 S.E.2d 357 (1997).
Trial court erred in finding that a Chapter 7 trustee was not the real party in interest in a legal malpractice action, which arose before a client's Chapter 7 bankruptcy case was commenced and was therefore property of the bankruptcy estate; on remand, the case was not to be dismissed until the client was given a reasonable amount of time to secure an abandonment by the Chapter 7 trustee or to substitute the Chapter 7 trustee as the plaintiff. Gingold v. Allen, 272 Ga. App. 653, 613 S.E.2d 173 (2005).
Appellant was not entitled to summary judgment on the appellee's personal injury claim because, while the bankruptcy trustee was the real party in interest as the appellee's tort action was pending at the time the appellee filed the appellee's bankruptcy petition, before the appellee's action could be dismissed, the appellee was entitled to a reasonable time to show ratification by, join, or substitute the real party in interest. Courtland Properties I, LLC v. Collins, 353 Ga. App. 99, 835 S.E.2d 319 (2019).
Receiver of a bank in receivership was the real party in interest under O.C.G.A. § 9-11-17(a) to enforce a bond insuring misconduct by the bank's employees, even though the bond was issued in the name of a bankruptcy debtor which was the parent company of the bank, since the bankruptcy trustee did not allege any harm to the debtor from the alleged misconduct of bank employees, and the bond was properly reformed to add the bank as an intended named insured. Lubin v. Cincinnati Ins. Co., F. Supp. 2d (N.D. Ga. Dec. 17, 2010), aff'd, 677 F.3d 1039 (11th Cir. 2012).
Section silent as to who may present order or pleading for party.
- This section requires that civil actions be brought in the name of the real parties in interest, but does not touch upon the question of who may present an order or pleading to the court on behalf of one of the parties. Dixie-Land Iron & Metal Co. v. Piedmont Iron & Metal Co., 235 Ga. 503, 220 S.E.2d 130 (1975).
Subsection (a) precludes dismissal until reasonable time is allowed after objection to show the real party by ratification, joinder, or substitution, which shall have the same effect as if the action had been commenced in the name of the real party in interest. Wilson Marine Sales & Serv., Inc. v. Fireman's Funds Ins. Co., 133 Ga. App. 220, 211 S.E.2d 145 (1974).
Before trial court can dismiss, based on motion, for failure to join an indispensable party under subsection (a) of this section, a reasonable time must be allowed after hearing of the motion for joinder or substitution. Henry v. Moister, 155 Ga. App. 462, 271 S.E.2d 40 (1980).
When the plaintiff is not the real party at interest, in hearing the preliminary defense the court should make a determination under this section; if the indispensable party can be joined, the court should ordinarily permit the joinder, and should not dismiss but take such other action as may be required. Sherwood Mem. Park v. Bryan, 142 Ga. App 664, 236 S.E.2d 903 (1977).
Appellees' claim that the administrator of the estate of a property owner's mother, as legal title holder to the devised property at the time a suit challenging the grant of a special exception was filed, was the proper party to bring the action was waived as the appellees did not move to dismiss the action on the ground, and no action was to be dismissed on the ground that it was not prosecuted in the name of the real party in interest until a reasonable time had been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Hollberg v. Spalding County, 281 Ga. App. 768, 637 S.E.2d 163 (2006).
Section contemplates substitution of party, not creation of action.
- Subsection (a) of O.C.G.A. § 9-11-17 contemplates that an "action" must already have been commenced prior to substituting as the plaintiff therein the real party in interest. Thus, the statute envisions the substitution of the real party at interest as the plaintiff in an "action" not the initial creation of the "action" itself. Mathews v. Cleveland, 159 Ga. App. 616, 284 S.E.2d 634 (1981).
Substitution not limited to
§ 9-11-25 situations. - "Substitution" as used in subsection (a) of O.C.G.A. § 9-11-17 is not limited to those instances enumerated in O.C.G.A. § 9-11-25. Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 314 S.E.2d 903 (1984).
Real party in interest objection is a matter in abatement and does not go to the merits of the action. Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 365 S.E.2d 494 (1988).
Summary judgment improper.
- Summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection. Warshaw Properties v. Lackey, 170 Ga. App. 101, 316 S.E.2d 482 (1984); Georgia Dep't of Human Resources ex rel. Holland v. Holland, 263 Ga. 885, 440 S.E.2d 9 (1994); Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209, 493 S.E.2d 595 (1997).
Since a real-party-in-interest objection is a matter in abatement and does not go to the merits of an action, such an objection cannot be disposed of by means of summary judgment but is properly disposed of pursuant to a motion to dismiss. Fleming v. Caras, 170 Ga. App. 579, 317 S.E.2d 600 (1984).
Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to a boat owner in an action arising from a boat/jet ski accident; although the plaintiffs were not proper parties to the action, as the plaintiffs did not own the jet ski and did not hold any valid subrogation claim, a real party in interest defense pursuant to O.C.G.A. § 9-11-17 was not a proper subject for summary judgment, and the trial court should have dismissed the action. Franco v. Cox, 265 Ga. App. 514, 594 S.E.2d 717 (2004).
Because the trial court's order was best viewed as an order dismissing the plaintiffs' complaint for failure to comply with the requirements of O.C.G.A. § 9-11-17, and summary judgment could not properly be granted to a defendant on the basis of a real-party-in-interest objection, absent any evidence that an exception to the final judgment rule applied, the appeal from the trial court's order had to be dismissed. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).
Although an estate's malpractice action was not initially brought by the real party in interest - the estate's administrator - the administrator was timely substituted as the plaintiff in the action by amendment which, under O.C.G.A. § 9-11-17(a), had the same effect as if the action had been commenced by the real party in interest. Thus, the suit was not time-barred by O.C.G.A. § 9-3-71(b)'s five-year repose period, and a doctor and the health care facilities were not entitled to summary judgment. Memar v. Styblo, 293 Ga. App. 528, 667 S.E.2d 388 (2008).
Pursuant to the condominium declaration, a condominium association lacked standing to sue the defendants for damages based on defects in the construction of common areas of the condominium. But under O.C.G.A. § 9-11-17(a), the trial court erred by granting the defendants summary judgment before considering the association's motion to substitute the individual condominium unit owners as real parties in interest. Phoenix on Peachtree Condo. Ass'n v. Phoenix on Peachtree, LLC, 294 Ga. App. 447, 669 S.E.2d 229 (2008).
Consideration of matters outside the pleadings.
- When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party in interest, this should be done under the provisions of O.C.G.A. § 9-11-43(b), relating to evidence on motions, and not by way of a motion for summary judgment under O.C.G.A. § 9-11-56. Warshaw Properties v. Lackey, 170 Ga. App. 101, 316 S.E.2d 482 (1984).
When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party-in-interest, this may be done under the provisions of O.C.G.A. § 9-11-43(b). Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 365 S.E.2d 494 (1988).
Joinder of real party by appellate court.
- Matter of joinder of an indispensable party or the real party in interest is so vital that an appellate court, sua sponte if necessary, may consider it, even though the point was not raised in the trial court and if the indispensable party can be joined, the court should ordinarily permit the joinder and not dismiss the action. S.D.H. Co. v. Stewart, 135 Ga. App. 505, 218 S.E.2d 268 (1975).
Loan receipt given to insurer preserves right of action in the insured, which may bring suit in the insured's own name. General Ins. Co. of Am. v. Bowers, 139 Ga. App. 416, 228 S.E.2d 348 (1976).
Standing after assigning cause to insurer.
- Party plaintiff who in the course of litigation has been discovered to have assigned its cause of action pursuant to a subrogation clause in its policy of insurance to its insurer has standing to move the trial court to substitute its insurer in the case as the real party in interest. Dover Place Apts. v. A & M Plumbing & Heating Co., Inc., 176 Ga. App. 805, 338 S.E.2d 44 (1985), overruling Stacey v. Fleet Multi Fuel Corp., 166 Ga. App. 684, 305 S.E.2d 424 (1983).
Subsequently-named corporation lacked standing to appeal from orders against the previously-named corporation as that corporation was not a party to the litigation, was not granted or denied intervention pursuant to a motion to amend with leave of court, and an attempted substitution by the predecessor was more than an attempt to correct a misnomer. Degussa Wall Sys. v. Sharp, 286 Ga. App. 349, 648 S.E.2d 687 (2007), cert. denied, 2007 Ga. LEXIS 701 (Ga. 2007).
Assignment of lease.
- Trial court erred in granting summary judgment to financing corporation after the financing corporation brought suit against the automobile dealership following the automobile dealership's lease of a vehicle to a person who later defaulted on a lease that the person had forged in the person's mother's name as the record showed that the financing corporation had assigned the lease to another entity and, thus, the other entity, and not the financing corporation, was the real party in interest who was required to file the suit. Town & Country Dodge, Inc. v. World Omni Fin. Corp., 261 Ga. App. 503, 583 S.E.2d 182 (2003).
Subrogation of insurer.
- Insured who has transferred the insured's right to maintain action by execution of a full subrogation agreement prior to the time suit is brought is in no position to bring or maintain the suit. Employers' Liab. Assurance Corp. v. Keelin, 132 Ga. App. 459, 208 S.E.2d 328 (1974).
While, under the ordinary insurance contract, the insurer is subrogated to the insured's claims and can pursue an action to recover for the sums paid to the insured, the parties may render inoperative this provision of the insurance contract. When this happens, this provision of the insurance contract should not be admitted into evidence in order to prove that the insured who brings the action is not the "real party in interest." Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga. App. 532, 307 S.E.2d 13 (1983).
Party plaintiff, who in the course of litigation had been discovered to have assigned the plaintiff's cause of action pursuant to a subrogation clause in the plaintiff's policy of insurance to the plaintiff's insurer, had standing to move the trial court to substitute the plaintiff's insurer in the case as the real party in interest. West v. DOT, 176 Ga. App. 806, 338 S.E.2d 45 (1985), overruling Stacey v. Fleet Multi Fuel Corp., 166 Ga. App. 684, 305 S.E.2d 424 (1983).
Joinder of uninsured motorist insurer.
- Even though an uninsured motorist insurer could not bring a subrogation action in its own name, it should have been permitted to join the action pursuant to O.C.G.A. § 9-11-17, or be joined or substituted in accordance with O.C.G.A. § 9-11-19. State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 502 S.E.2d 778 (1998), aff'd, 271 Ga. 77, 515 S.E.2d 832 (1999).
Reassignment back to insured.
- In an action by an insured against an insurer, the insured's previous assignment of policy benefits to a chiropractor did not require dismissal of the action on the basis that the insured was not the real party in interest if there was a valid reassignment by the chiropractor to the insured. Jones v. State Farm Mut. Auto. Ins. Co., 228 Ga. App. 347, 491 S.E.2d 830 (1997).
Damage to condominium property.
- When rights sought to be enforced were right to recover for damages to property and the right to have that property protected against continuance of a nuisance, such rights belonged to owners of the property damaged, and unincorporated condominium association, which had no right to possession of any of the property claimed to have been damaged, lacked standing to maintain an action. Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769, 294 S.E.2d 495 (1982).
Amenability of insurer to suit by injured party.
- Absent policy provisions to the contrary, one who suffers injury is not in privity of contract with the insurer under a liability insurance policy, and cannot reach policy proceeds for payment of one's claim by an action directly against the insurer. Lee v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974).
Ejectment action brought in the fictitious form is subject to substitution of the real party in interest or dismissal. Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980).
Action against corporation involved in merger.
- When former Code 1933, § 22-1007 (see now O.C.G.A. § 14-2-1401 et seq.), relating to prosecution of claims by or against corporations involved in a merger or consolidation, applied, an action could proceed against a former corporation as if a merger had never taken place, or the surviving corporation can be substituted as a defendant. Employers' Liab. Assurance Corp. v. Keelin, 132 Ga. App. 459, 208 S.E.2d 328 (1974).
Action on contract between highway department and construction company by injured third party.
- Contract between state highway department (now Department of Transportation) and construction company, by which company undertakes to provide for safety of the public during construction of a project, inures to the benefit of the public, and a member of the public injured as a result of the company's negligence may sue the company directly. Lee v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974).
Defendant's burden to prove facts necessary to support dismissal.
- When a motor company filed a tort action against four boys and their parents for damages sustained when the boys allegedly vandalized and destroyed two vehicles while the vehicles were in the company's possession, the trial court erred in placing the burden on the company to establish the company's right to bring the action because in arguing that the company was a real party in interest, the boys and their parents had the burden of proving the facts necessary to support the judgment of dismissal. Jones Motor Co. v. Anderson, 258 Ga. App. 161, 573 S.E.2d 429 (2002).
Determination of appropriate party in landowner dispute.
- Defendant objected contending that the defendant was not a proper party against whom relief could be sought because the defendant did not own the real property at issue, having transferred title to a spouse; however, the defendant's argument was without merit as the plaintiff alleged that the defendant had trespassed by intentionally damaging the sewer line on the plaintiff's property, among other things. These allegations were sufficient to show that the defendant could have been joined as a proper party if the defendant had not been so named originally. Dover v. Bowcock, 259 Ga. App. 852, 578 S.E.2d 559 (2003).
Proper plaintiff is new property owner who became "grantor".
- Former property owner lacked standing to bring an action for statutory damages and attorney fees under O.C.G.A. § 44-14-3(c) against a lender that failed to cancel the lender's security deed on the property after receiving a payoff of the loan as the owner no longer had an interest in the property at the time that the complaint was filed and, accordingly, the owner was not the real party in interest under O.C.G.A. § 9-11-17(a); the new purchaser of the property became "the grantor" that had the capacity to prosecute the claim pursuant to O.C.G.A. § 44-14-3(a)(4). Associated Credit Union v. Pinto, 297 Ga. App. 605, 677 S.E.2d 789 (2009).
Time limit to amend complaint to name real party in interest.
- Decedent's sibling, as the purported representative of the decedent's spouse, filed a wrongful death suit against medical providers within five years of the alleged negligent acts and, within a reasonable time after the providers objected to the sibling's standing, filed a motion to amend the complaint to name the decedent's spouse as the real party in interest. As the proposed amendment did not "initiate" a new claim, the medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), did not prevent amendment of the complaint even though the motion to amend was filed more than five years after the alleged negligence. Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008).
Infants or Incompetent Persons
Discretion in appointment of guardian ad litem.
- Subsection (c) of this section intends that trial court be given discretion in appointment of a guardian ad litem. O'Neil v. Moore, 118 Ga. App. 424, 164 S.E.2d 328 (1968); Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).
Guardian ad litem unnecessary absent conflicting interests.
- Appointment of a guardian ad litem was not mandatory because the parent had lawful authority to act on behalf of the parent's children in regard to their property rights, and because there was no evidence that the parent's interests in the matters at issue were adverse to that of the children. Dee v. Sweet, 224 Ga. App. 285, 480 S.E.2d 316 (1997).
Minor's adversary has no legitimate interest in selection of representative.
- Selection of an individual to represent a minor's interest is a matter which peculiarly lends itself to the discretion of the trial court, and is not ordinarily the type of matter in which the minor's adversary has a legitimate interest. Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).
Minor's next friend has no authority to forfeit minor's claim by lack of prosecution, except by leave of court. Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 (1979).
Protection of minor's interest when next friend fails to appear.
- It is error to dismiss with prejudice a complaint brought on behalf of a minor by the next friend, for lack of prosecution, without further hearing and determination that dismissal should be with prejudice; hence, when the minor was not represented at the call of the case, it was incumbent upon the trial court to appoint a guardian ad litem or make such other order as the court deemed proper for the protection. Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 (1979).
Guardian ad litem appointed for parent.
- Juvenile court did not err by sua sponte evaluating a parent's competency in a termination of parental rights proceeding as another court had already found the parent mentally incompetent and the parent's rights were terminated based upon findings independent of that mental competency; thus, no harm was shown by the juvenile court's failure to hold a competency hearing. As a safeguard, the juvenile court appointed a guardian ad litem for the parent. In the Interest of N. S. E., 293 Ga. App. 171, 666 S.E.2d 587 (2008).
RESEARCH REFERENCES
Am. Jur. 2d.
- 6 Am. Jur. 2d, Associations and Clubs, § 49 et seq. 18 Am. Jur. 2d, Cooperative Associations, § 3. 18 Am. Jur. 2d, Corporations, § 2. 39 Am. Jur. 2d, Guardian and Ward, § 186 et seq. 42 Am. Jur. 2d, Infants, §§ 24, 25, 146 et seq. 48 Am. Jur. 2d, Labor and Labor Relations, § 623 et seq. 59 Am. Jur. 2d, Parties, § 22 et seq. 59A Am. Jur. 2d, Partnership, § 294 et seq.
13 Am. Jur. Pleading and Practice Forms, Guardian, § 494. 19 Am. Jur. Pleading and Practice Forms, Parties, § 2 et seq.
C.J.S.- 35A C.J.S., Federal Civil Procedure, § 56 et seq. 39 C.J.S., Guardian and Ward, § 264. 43 C.J.S., Infants, §§ 395, 396. 57 C.J.S., Mental Health, § 374 et seq. 67A C.J.S., Parties, §§ 7 et seq., 36.
ALR.
- Right of husband and wife to maintain joint action for wrongs directly affecting both arising from same act, 25 A.L.R. 743.
Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111.
Duty of one learning of action instituted in his name without authority, 63 A.L.R. 1068.
Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107.
Proper party plaintiff to action against tort-feasor for damage to insured property where insurer is entitled to subrogation to extent of loss paid by it, 96 A.L.R. 864; 157 A.L.R. 1242.
Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.
Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.
Marital or parental relationship between plaintiff and member of partnership as affecting right to maintain action in tort against partnership, 101 A.L.R. 1231.
Right of ward to maintain action independent from his general guardian, on contracts or other obligations entered into by the guardian on ward's behalf, 102 A.L.R. 269.
Remedy for conservation of property of alleged incompetent prior to his adjudication as such, 107 A.L.R. 1392.
Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167.
By and in whose name suit to annul infant's marriage must be brought, 150 A.L.R. 609.
Suits and remedies against alien enemies, 152 A.L.R. 1451; 153 A.L.R. 1419; 155 A.L.R. 1451; 156 A.L.R. 1448, 157 A.L.R. 1449.
Proper party plaintiff to action against tort-feasor for damage to insured property where insurer is entitled to subrogation to extent of loss paid by it, 157 A.L.R. 1242.
Appearance by guardian ad litem without service of summons, 164 A.L.R. 529.
May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.
Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 13 A.L.R.2d 948.
Conflict of laws as to right of injured person to maintain direct action against tort-feasor's automobile liability insurer, 16 A.L.R.2d 881.
Right of individual employee to enforce collective labor agreement against employer, 18 A.L.R.2d 352.
Joinder of insurer and insured under policy of compulsory indemnity or liability insurance in action by injured third person, 20 A.L.R.2d 1097.
Corporation as necessary or proper party defendant in proceedings to determine validity of election or appointment of corporate director or officer, 21 A.L.R.2d 1048.
Liability of incompetent's estate for torts committed by guardian, committee, or trustee in managing estate, 40 A.L.R.2d 1103.
What law governs as to proper party plaintiff in contract action, 62 A.L.R.2d 486.
Federal Civil Procedure Rule 17(c), relating to representation of infants or incompetent persons, 68 A.L.R.2d 752.
Capacity of one who is mentally incompetent but not so adjudicated to sue in his own name, 71 A.L.R.2d 1247.
Right of insurance agent to sue in his own name for unpaid premium, 90 A.L.R.2d 1291.
Capacity of guardian to sue or to be sued outside state where appointed, 94 A.L.R.2d 162.
Liability of corporation for torts of subsidiary, 7 A.L.R.3d 1343.
Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where insured has paid part of loss, 13 A.L.R.3d 140.
Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance, 13 A.L.R.3d 229.
Right of pledgor of commercial paper to maintain action thereon in his own name, 43 A.L.R.3d 824.
Liability of insane person for his own negligence, 49 A.L.R.3d 189.
Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.
Standing to contest award of, or acquisition of right to operate, cable TV certificate, license, or franchise in state court action, 78 A.L.R.3d 1255.
Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 A.L.R.4th 1092.
Joint venture's capacity to sue, 56 A.L.R.4th 1234.
Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.
Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records--modern status, 87 A.L.R. Fed. 177.
Representation of Minors and Infants Under Fed. R. Civ. P. 17(c), 27 A.L.R. Fed. 3d 5.
Representation of "Incompetent Persons" Under Fed. R. Civ. P. 17(c), 29 A.L.R. Fed. 3d 4.