Appellants Benjamin Hill Vincent, Individually, and the Estate of Benjamin Hill Vincent, Formerly an Incapacitated Adult, brought suit against John Jolley and others who had previously been appointed Vincent’s guardians, as well as the companies who had issued them surety bonds. Jolley died on August 16, 2007, and a suggestion of death was filed several days after his death on August 24, 2007. All attorneys of record for the parties were served by mail. Sandra D. Jones, Jolley’s daughter, was appointed personal representative of Jolley’s estate on or about August 30, 2007. However, she was never served with the suggestion of death. On November 18, 2009, a motion to dismiss Jolley as a party defendant was filed by co-defendant Ronald Casey based on the failure to substitute a proper party within 180 days following the suggestion of death. See OCGA § 9-11-25 a 1. The personal representative of Jolley’s estate executed a written acknowledgment of service of the motion and did not oppose Jolley’s dismissal as a party defendant in the case. Vincent opposed the motion, and argued at the hearing that Jolley should not be dismissed because service of the suggestion of death had never been made on the personal representative and thus the 180 days during which a motion to substitute had to be made had not begun to run. The trial court granted the motion, and Vincent appeals.
OCGA § 9-11-25 a 1 provides for the substitution of a party who dies during the pendency of litigation as follows: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representative of the deceased party and, together with the notice of the hearing, shall be served on the parties as provided in Code Section 9-11-5 and upon persons not parties in the manner provided in Code Section 9-11-4 for the service of a summons. Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.”
