NOT TO BE PUBLISHED

OPINION AND ORDER

ACREE, Chief Judge.

Pauline Ratliff appeals the September 28, 2012 order of the Hopkins Circuit Court granting summary judgment against her and in favor of appellees, Dr. Philip Trover and Baptist Health Madisonville f/k/a Trover Clinic Foundation,1 and dismissing Ratliff's claims of medical negligence, outrage/intentional infliction of emotional distress (IIED), negligent infliction of emotional distress, fraud, negligent misrepresentation, and punitive damages. For the following reasons, we dismiss this appeal.

A proposed class action lawsuit was filed against Dr. Trover and the Foundation on March 17, 2004. Pauline Ratliff joined the proposed class as a plaintiff shortly thereafter. The circuit court ultimately denied class certification, and the forty-nine, or so, individual cases were ordered separated with joint discovery permitted.

The parties endured several years of litigation from 2005 through 2012. On March 14, 2012, Ratliff died. When Dr. Trover and the Foundation moved for summary judgment in the autumn, Ratliff's counsel responded and mentioned Ratliff's passing and the absence of revival in her case. However, no party was substituted for the decedent in the circuit court and there was no revival of the action prior to the circuit court's ruling. Nevertheless, on September 28, 2012, the Hopkins Circuit Court entered an order granting summary judgment in favor of Dr. Trover and the Foundation and dismissing all of Ratliff's claims with prejudice. Notice of appeal to this Court was filed with the circuit court on October 24, 2012. Both the judgment and the notice of appeal identified the deceased Pauline Ratliff as the plaintiff, and not her estate, as the party against whom judgment was entered.

As we explain below, we are compelled to dismiss this case because the appeal was taken from a void judgment, "made in the name of a dead [wo]man, a mere non existence . . . ." Bowman v. Violet, 20 Ky. 350, 351 (1827). The circuit court has no jurisdiction over the dead and a notice of appeal from a judgment entered in favor of the dead is ineffective to transfer jurisdiction of the matter to this Court. See City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990) ("[N]otice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court [placing] the named parties in the jurisdiction of the appellate court.").

The record indicates on October 22, 2012, within the limitation set by KRS2 395.278, parties tendered to the circuit court an agreed order substituting Rhonda Brasher, the personal representative of Ratliff's estate, as plaintiff. The court entered that order on November 1, 2012. Also during this time, as previously noted, an appeal had been taken to this Court.

"At common law, if one of the parties died, all subsequent proceedings had without revivor were void." Davis v. Catlettsburg-Kenova-Ceredo Water Co., 136 Ky. 66, 123 S.W. 335, 336 (1909). Therefore, all proceedings in the circuit court (and this Court) subsequent to Pauline Ratliff's death on March 14, 2012, and until revival of the action in circuit court on November 1, 2012, are void — including the judgment entered September 28, 2012, and the notice of appeal filed October 24, 2012.

When a party to a lawsuit dies, the action is abated unless and until revival of the action by substituting the decedent's personal representative for the decedent. Hardin County v. Wilkerson, 255 S.W.3d 923, 926 (Ky. 2008); Frank v. Estate of Enderle, 253 S.W.3d 570, 575 (Ky. App. 2008). Quoting our highest court, "[t]he rule is that . . . when [a party] in an action dies, the action abates as to him and the court is without jurisdiction as to him until the action is revived and his representatives are brought before the court." Murphy v. Blackburn, 229 Ky. 109, 16 S.W.2d 771, 772 (1929). "A personal representative does not automatically succeed to the decedent's status as a litigant . . . but is permitted by the statutes to raise it from limbo and become a party to it." Daniel v. Fourth & Market, Inc., 445 S.W.2d 699, 701 (Ky. 1968).

The net effect of these facts and this law is that an appeal was taken from a void judgment. Although Ratliff's action did not cease with her death, it was necessary for her representative to file a motion for substitution to revive her claims prior to submission of her case for judgment because there was no other surviving, original plaintiff in her case. CR3 25.01; KRS 411.140. From the moment of Ratliff's death, her claim could not proceed until revived by her personal representative. That occurred on November 1, 2012.

The notice of appeal filed in October 2012 in the name of a person who died before the judgment was entered did not transfer jurisdiction of the case to this Court. The circuit court never lost jurisdiction. Having authorized revival of the case, it should proceed as though nothing occurred between the date of Ratliff's death and the date of revival.

For these reasons, this appeal is hereby ordered dismissed.

ALL CONCUR.