WESLEY PAYNE v. BASSAM MAROOKI
Docket A26A0742
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- Georgia
- Court
- Court of Appeals of Georgia
- Type
- Opinion
- Case type
- Civil
- Disposition
- Dismissed
- Docket
- A26A0742
Appeal from a trial court order dismissing a negligence action and various related post-death substitution and dismissal motions
Summary
The Court of Appeals dismissed Payne’s appeal as a nullity because the appellant, Wesley Payne, had died before substitution of the estate occurred, and Georgia law treats further proceedings as void as to a deceased party until someone is substituted. The trial court had dismissed the case for discovery violations after Payne’s death; the appellate court held that actions taken after his death are void as to him. The court remanded for the trial court to resolve pending motions to substitute the estate and, if appropriate, to reconsider defendants’ dismissal motions.
Issues Decided
- Whether an appeal by a deceased party is valid when no substitution has been made for the decedent
- Whether proceedings and a dismissal entered after a party's death are void as to that decedent until substitution occurs
Court's Reasoning
Under Georgia precedent, a deceased person cannot remain a party and further proceedings are suspended as to the decedent until a proper substitution is made. Because no living appellant had been substituted for Payne when the trial court continued the case and later dismissed it for discovery violations, the appeal was a nullity and the post-death actions are void as to him. The court therefore dismissed the appeal and directed the trial court to address substitution and then any dismissal motions as necessary.
Authorities Cited
- Ashburn Bank v. Gorday189 Ga. App. 565 (377 SE2d 30) (1988)
Parties
- Appellant
- Wesley Payne
- Appellee
- Bassam Marooki
- Appellee
- Other defendants
Key Dates
- Complaint filed
- 2022-12-21
- Plaintiff's death
- 2024-03-12
- Defendants' first motion to dismiss
- 2024-05-05
- Trial court hearing and initial dismissal
- 2024-12-01
- Motion for reconsideration granted
- 2025-03-10
- Defendants' second motion to dismiss
- 2025-05-01
- Estate administrator motion to substitute
- 2025-06-19
- Trial court hearing on motions
- 2025-07-31
- Order vacating substitution and granting dismissal
- 2025-08-12
- Court of Appeals decision
- 2026-04-01
What You Should Do Next
- 1
File or contest substitution of the estate
The estate administrator (or defendants) should ensure a proper motion to substitute the estate as plaintiff is filed and litigated so the case can proceed with a living party.
- 2
Notify the trial court of this opinion and request instructions
Counsel should submit the Court of Appeals' order to the trial court and request entry of orders directing how to proceed consistent with the opinion.
- 3
If substituted, re-litigate dismissal motions if necessary
If the estate is substituted, parties should be prepared to re-raise or defend against the defendants' motions to dismiss and related discovery sanctions in light of the substitution.
Frequently Asked Questions
- What does this decision mean?
- The appeals court said the appeal cannot proceed because the original plaintiff died and no one was substituted, so actions after the death are void as to him until the estate is substituted.
- Who is affected by this decision?
- The deceased plaintiff's estate, the defendants in the negligence case, and the trial court proceedings are affected; the dismissal for discovery violations cannot stand as to the deceased until substitution occurs.
- What happens next in the trial court?
- The trial court must address the pending motions to substitute the estate as the plaintiff and, if substitution is made, may then consider defendants' motions to dismiss.
- Can this decision be appealed?
- The Court of Appeals dismissed the appeal as a nullity; further review would depend on proper substitution of the estate and any new or renewed appeal taken from subsequent rulings.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 01, 2026
The Court of Appeals hereby passes the following order:
A26A0742. PAYNE v. MAROOKI et al.
On December 21, 2022, Wesley Payne sued Bassam Marooki and several others
(“defendants”) for negligence that allegedly occurred when Marooki’s truck collided
with Payne’s vehicle. On May 5, 2024, defendants moved to dismiss the complaint,
alleging, among other things, that Payne had wilfully failed to comply with discovery
requirements, authorizing dismissal as a sanction pursuant to OCGA § 9-11-37. Two
days later, Payne’s counsel filed a suggestion of death indicating that Payne had died
on March 12, 2024.
Following a December 2024 hearing, at which only defendants appeared, the
trial court granted the motion to dismiss. In January 2025, Payne’s counsel moved for
reconsideration of that ruling, asserting that she had not received notice of the
December hearing. On February 17, 2025, counsel also filed a motion for leave to
amend the complaint to substitute Payne’s estate as the party plaintiff. The trial court
granted the motion for reconsideration on March 10, 2025, placing the case back in
“active status circulation.” It did not rule on the motion to substitute.
In May 2025, defendants filed a second motion to dismiss, arguing that the
motion for reconsideration should not have been granted, that Payne’s counsel failed
to properly and timely bring the estate into the case, and that the litigation could not
proceed with a deceased person as plaintiff. The estate administrator filed her own
motion to substitute on June 19, 2025, requesting that she be substituted as the party
plaintiff.
The trial court held a hearing on July 31, 2025, at which the court addressed the
defendants’ motions to dismiss and the timeliness of the substitution effort. Defense
counsel again raised the discovery violation issue, noting that the “failure to respond
to discovery” formed part of the dismissal request. The trial court initially denied the
motion to substitute parties in an order entered on August 12, 2025. Approximately
one week later, however, the trial court vacated that order, granted defendants’
original motion to dismiss based on discovery violations, and deemed moot all other
pending motions, including the motions to substitute the estate as the party plaintiff.
This appeal followed, with Payne as the appellant.
“A deceased person cannot be a party to legal proceedings.” Ashburn Bank v.
Gorday, 189 Ga. App. 565 (377 SE2d 30) (1988) (quotation marks omitted). Although
the death of a party does not abate a pending lawsuit where the cause of action
survives, “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.” Id. (quotation
marks omitted). Until that time, “further proceedings in the case are void as to the
decedent.” Id. (quotation marks omitted). As “it appears that there is no living
[appellant] in this case[,] ... the appeal is a nullity.” Id. (quotation marks omitted). We
therefore DISMISS this appeal with the admonition that all proceedings that occurred
in the trial court after Payne’s death, including the dismissal based on discovery
violations, “are, as to [him], void.” Id. (quotation marks omitted). On remand, the
trial court shall address the motions to substitute the estate as the party plaintiff and,
if necessary, consider again defendants’ motions to dismiss.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/01/2026
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.