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Miller v. Lomax

Court of Appeals of Georgia, Third Division

July 6, 2015

MILLER et al.
v.
LOMAX et al

Editorial Note:

This Opinion is Uncorrected and subject to revision by the court.

MCFADDEN, Judge. Ellington, P. J., and Dillard, J., concur.

OPINION

Page 476

McFadden, Judge.

This appeal is from a dismissal under Georgia's five-year rule. Lee Miller (individually and in her role as trustee of the Linda J. Miller Irrevocable Special Needs Trust) and Robert McCready Miller (individually and in his role as next friend of his minor son, Robert Jacob Miller) (collectively, " the plaintiffs" ) brought this action against Robert R. Lomax (in his role as executor of the estate of Thomas Eugene Miller), Carolyn Baldwin Miller, and Ray's Uptown Body Shop, Inc. (collectively, " the defendants" ). The trial court dismissed the action finding that no written order had been taken in the case for a period of five years, and denied the plaintiffs' motion for reconsideration of the dismissal. See OCGA § § 9-2-60 (b); 9-11-41 (e). The plaintiffs argue that these rulings were error because the trial court had entered an order authorizing an attorney to withdraw during the five-year period, but the record shows that the order was void because it was entered in violation of a bankruptcy stay. Alternatively, the plaintiffs argue that a pending motion to recuse tolled the five-year period, but Georgia law does not support this argument. Accordingly, we find that the trial court did not err in dismissing the action under the five-year rule, and we affirm.

1. Five-year rule.

Georgia's five-year rule is set out in two statutes, OCGA § 9-2-60 (b), which provides that " [a]ny action or proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff," and OCGA § 9-11-41 (e), which contains similar language. Together, the two Code sections " provide for the automatic dismissal of any action filed in a Georgia court of record when 'no written order is taken for a period of five years[.]' " Zepp v. Brannen, 283 Ga. 395, 396 (658 S.E.2d 567) (2008) (punctuation omitted; quoting OCGA § 9-2-60 (b)). The five-year rule " places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five[-]year period and to make sure the same is entered in the record." Ogundele v. Camelot Club Condominium Assn., 268 Ga.App. 400, 402 (2) (602 S.E.2d 138) (2004) (citations and punctuation omitted). We review de novo the trial court's application of the five-year rule to automatically dismiss this case. See Jinks v. Eastman Enterprises, 317 Ga.App. 489, 489-490

Page 477

(731 S.E.2d 378) (2012), overruled in part on other grounds by O'Dell v. Mahoney, 324 Ga.App. 360, 369 (5) (750 S.E.2d 689) (2013).

2. Facts and procedural posture.

The record shows that, with the exception of the one withdrawal order disputed by the parties, no order was filed in this case between April 13, 2004 and September 4, 2012. During that time, the case was subject to two automatic bankruptcy stays, the first from April 12, 2005 to September 20, 2005 when one of the plaintiffs petitioned for bankruptcy, and the second from January 9, 2009 to November 4, 2009 when one of the defendants petitioned for bankruptcy. During the bankruptcy stays, the trial court was precluded from " commenc[ing] or continu[ing] ... a judicial ... action or proceeding against the debtor[.]" 11 U.S.C. § 362 (a) (1).

Some activity occurred in the case in July 2008, in the period between the two bankruptcy stays. That month, the plaintiffs filed a motion to recuse all of the judges in the circuit on the ground that a probate judge in the circuit would be a fact witness in the case. The trial court did not rule on the motion to recuse. Also that month, one of the plaintiffs' attorneys sought to withdraw from the case. The trial court took no action on that attorney's request until November 12, 2008, when he signed an order authorizing the withdrawal. The withdrawal order was not filed with the clerk of court until January 21, 2009, during the pendency of the second bankruptcy stay. The order's effect on the five-year period is the subject of dispute between the parties.

In February 2013, the defendants moved to dismiss the case on the ground that no order had been taken in the case for more than five years. The trial court orally granted the motion at a hearing and the plaintiffs moved for reconsideration. On July 15, 2014, the trial court entered a ...


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