FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
January 28, 2021 In the Court of Appeals of Georgia A20A2049. BALDWIN v. GAY et al.
PIPKIN, Judge.
Appellant Debra Baldwin appeals the dismissal of her renewal action against
Appellees Jack DeWayne Gay and Colcraft, Inc. (collectively “Appellees”). We agree
with the trial court that Appellant’s renewal action is time barred because her original
action stood automatically dismissed for want of prosecution in late 2015 and was not
thereafter recommenced within six months. Accordingly, we affirm.
This appeal stems from the August 2004 death of Herbert Washington and two
wrongful-death actions that followed. The first action was filed in October 2004 by
Angela Washington – as surviving child and next of kin of Herbert Washington –
alleging that Gay had negligently caused the fatal collision while operating a tractor-
trailer truck owned by his employer, Colcroft (the “Washington action”). In October 2005, Angela Washington settled with Appellees and dismissed the Washington
action with prejudice. Angela Washington is not a party to this appeal.
The second wrongful death action was filed in August 2006 – just days before
the expiration of the statute of limitations1 – by Appellant, also acting as surviving
child and next of kin of Herbert Washington (the “Baldwin action”). Consequently,
Appellees filed a motion in the Washington action to set aside the dismissal and to
“reopen” the matter. The motion asserted that the settlement in the Washington action
was for the full value of the victim’s life and that, though Appellant was entitled to
a portion of the settlement, Angela Washington had refused to distribute the proceeds;
Appellees asked the trial court in the Washington action to either set aside the
settlement or require Angela Washington to split the settlement proceeds with
Appellant. Appellant thereafter moved to intervene in the Washington action.
Meanwhile, in the Baldwin action, the parties filed a joint motion to continue
all proceedings until the motions to set aside and intervene were decided in the
Washington action. In December 2010, the trial court granted the joint motion to
continue in the Baldwin action ; this was the final order entered by the trial court in
that case. The pending motions in the Washington action were denied in October
2015, and Appellant ostensibly dismissed the Baldwin action without prejudice in
November 2017.
1 See OCGA § 9-3-33.
2 In December 2017, Appellant ostensibly renewed her wrongful-death action
(the “Baldwin renewal action”). Appellees answered and moved to dismiss, arguing
that Appellant’s action was time barred. The trial court agreed, concluding that the
original Baldwin action was automatically dismissed for want of prosecution in
December 2015 and that, because Appellant had failed to renew the action within 6
months – and because her action was filed outside the statute of limitation – the
Baldwin renewal action was time barred. Appellant contends that the dismissal of her
renewal action was erroneous because, she says, her original Baldwin action should
not have been automatically dismissed for want of prosecution. We disagree.
OCGA 9-11-41 (e) provides as follows:
Any action 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. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.
In accordance with the plain language of this provision, “any action in which no
written order is taken for a period of five years shall automatically stand dismissed.
The provisions of th[is] Code section[] are mandatory, and dismissal occurs by
operation of law.” Tate v. Dept. of Transp., 261 Ga. App. 192, 193 (582 SE2d 162)
(2003). This “section has at least the dual purpose of preventing court records from
3 becoming cluttered by unresolved and inactive litigation and protecting litigants from
dilatory counsel.” Swint v. Smith, 219 Ga. 532, 534 (3) (134 SE2d 595) (1964).
Appellant first argues that the original Baldwin action should not have been
deemed dismissed by operation of law because, she says, she was not dilatory and
because her case was not one that was “cluttering up the trial court’s docket.”
According to Appellant, she was active in both the original Baldwin action and the
Washington action, by filing pleadings and engaging in discovery; she asserts that she
did not “leave her case inactive for the statutory 5-year period[,] the judge did.”
However, the “litigation efforts” of the parties are insufficient to satisfy the
requirements of OCGA § 9-11-41 (e). Cf. McAllister v. Knowles, 302 Ga. App. 392,
392 (691 SE2d 280) (2010) (action automatically dismissed pursuant to OCGA § 9-
11-41 (e) where trial court did not enter an order within 5 years of the date of the
filing of the complaint despite years of “litigation efforts” by the plaintiff). Likewise,
Appellant’s claim that she has not been dilatory is also unavailing. See Ogundele v.
Camelot Club Condominium Assn., 268 Ga. App. 400, 402 (2) (602 SE2d 138)
(2004). Instead, the burden is on the plaintiff “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.” (Citations and punctuation omitted.) Id. Appellant
could have sought an additional continuance, but she did not.
4 Seemingly recognizing this requirement, Appellant pivots and argues that the
October 2015 order in the Washington action satisfied the order requirement in the
original Baldwin action because, she says, the two cases were “related”. See Uniform
Superior Court Rule 4.8.2 While we recognize that these two cases arose out of the
same facts and were assigned to the same trial judge , Appellant cites no authority –
and we are aware of none – that an order entered in one case can satisfy the order
requirement of OCGA § 9-11-41 (e) in a related case.3 Such a novel argument is
especially tenuous here, where Appellant was never a party to the Washington action,
and the Washington action stood dismissed for years before the 2015 order was
entered denying the relevant motions.
Finally, Appellant claims that Georgia appellate courts have recognized an
exception to the automatic dismissal provision of OCGA § 9-11-41
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FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
January 28, 2021 In the Court of Appeals of Georgia A20A2049. BALDWIN v. GAY et al.
PIPKIN, Judge.
Appellant Debra Baldwin appeals the dismissal of her renewal action against
Appellees Jack DeWayne Gay and Colcraft, Inc. (collectively “Appellees”). We agree
with the trial court that Appellant’s renewal action is time barred because her original
action stood automatically dismissed for want of prosecution in late 2015 and was not
thereafter recommenced within six months. Accordingly, we affirm.
This appeal stems from the August 2004 death of Herbert Washington and two
wrongful-death actions that followed. The first action was filed in October 2004 by
Angela Washington – as surviving child and next of kin of Herbert Washington –
alleging that Gay had negligently caused the fatal collision while operating a tractor-
trailer truck owned by his employer, Colcroft (the “Washington action”). In October 2005, Angela Washington settled with Appellees and dismissed the Washington
action with prejudice. Angela Washington is not a party to this appeal.
The second wrongful death action was filed in August 2006 – just days before
the expiration of the statute of limitations1 – by Appellant, also acting as surviving
child and next of kin of Herbert Washington (the “Baldwin action”). Consequently,
Appellees filed a motion in the Washington action to set aside the dismissal and to
“reopen” the matter. The motion asserted that the settlement in the Washington action
was for the full value of the victim’s life and that, though Appellant was entitled to
a portion of the settlement, Angela Washington had refused to distribute the proceeds;
Appellees asked the trial court in the Washington action to either set aside the
settlement or require Angela Washington to split the settlement proceeds with
Appellant. Appellant thereafter moved to intervene in the Washington action.
Meanwhile, in the Baldwin action, the parties filed a joint motion to continue
all proceedings until the motions to set aside and intervene were decided in the
Washington action. In December 2010, the trial court granted the joint motion to
continue in the Baldwin action ; this was the final order entered by the trial court in
that case. The pending motions in the Washington action were denied in October
2015, and Appellant ostensibly dismissed the Baldwin action without prejudice in
November 2017.
1 See OCGA § 9-3-33.
2 In December 2017, Appellant ostensibly renewed her wrongful-death action
(the “Baldwin renewal action”). Appellees answered and moved to dismiss, arguing
that Appellant’s action was time barred. The trial court agreed, concluding that the
original Baldwin action was automatically dismissed for want of prosecution in
December 2015 and that, because Appellant had failed to renew the action within 6
months – and because her action was filed outside the statute of limitation – the
Baldwin renewal action was time barred. Appellant contends that the dismissal of her
renewal action was erroneous because, she says, her original Baldwin action should
not have been automatically dismissed for want of prosecution. We disagree.
OCGA 9-11-41 (e) provides as follows:
Any action 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. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.
In accordance with the plain language of this provision, “any action in which no
written order is taken for a period of five years shall automatically stand dismissed.
The provisions of th[is] Code section[] are mandatory, and dismissal occurs by
operation of law.” Tate v. Dept. of Transp., 261 Ga. App. 192, 193 (582 SE2d 162)
(2003). This “section has at least the dual purpose of preventing court records from
3 becoming cluttered by unresolved and inactive litigation and protecting litigants from
dilatory counsel.” Swint v. Smith, 219 Ga. 532, 534 (3) (134 SE2d 595) (1964).
Appellant first argues that the original Baldwin action should not have been
deemed dismissed by operation of law because, she says, she was not dilatory and
because her case was not one that was “cluttering up the trial court’s docket.”
According to Appellant, she was active in both the original Baldwin action and the
Washington action, by filing pleadings and engaging in discovery; she asserts that she
did not “leave her case inactive for the statutory 5-year period[,] the judge did.”
However, the “litigation efforts” of the parties are insufficient to satisfy the
requirements of OCGA § 9-11-41 (e). Cf. McAllister v. Knowles, 302 Ga. App. 392,
392 (691 SE2d 280) (2010) (action automatically dismissed pursuant to OCGA § 9-
11-41 (e) where trial court did not enter an order within 5 years of the date of the
filing of the complaint despite years of “litigation efforts” by the plaintiff). Likewise,
Appellant’s claim that she has not been dilatory is also unavailing. See Ogundele v.
Camelot Club Condominium Assn., 268 Ga. App. 400, 402 (2) (602 SE2d 138)
(2004). Instead, the burden is on the plaintiff “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.” (Citations and punctuation omitted.) Id. Appellant
could have sought an additional continuance, but she did not.
4 Seemingly recognizing this requirement, Appellant pivots and argues that the
October 2015 order in the Washington action satisfied the order requirement in the
original Baldwin action because, she says, the two cases were “related”. See Uniform
Superior Court Rule 4.8.2 While we recognize that these two cases arose out of the
same facts and were assigned to the same trial judge , Appellant cites no authority –
and we are aware of none – that an order entered in one case can satisfy the order
requirement of OCGA § 9-11-41 (e) in a related case.3 Such a novel argument is
especially tenuous here, where Appellant was never a party to the Washington action,
and the Washington action stood dismissed for years before the 2015 order was
entered denying the relevant motions.
Finally, Appellant claims that Georgia appellate courts have recognized an
exception to the automatic dismissal provision of OCGA § 9-11-41 (e) and that it
2 Superior Court Rule 4.8 states as follows: “At any time an attorney is counsel in any action which the attorney knows is or may be related to another action either previously or presently pending in and assigned to a particular judge of a superior court in the same circuit involving some or all of the same subject matter, or some or all of the same factual issues, such attorney immediately shall so advise the judges involved, who will then make an appropriate determination as to which judge the action or actions should be assigned.” 3 As Judge Birdsong explained some years ago, “Rule 4.8 is merely an administrative rule designed to promote judicial economy and to facilitate timely case disposition,” it does not provide substantive rights to the parties. Hardeman v. Roberts, 214 Ga. App. 484, 485 (448 SE2d 254) (1994) (Bridsong, J., concurring specially).
5 should be applied in his case. See, e.g., Jefferson v. Ross, 250 Ga. 817 (301 SE2d
268) (1983); Georgia Dept. of Human Svcs. v. Patton, 322 Ga. App. 333 (744 SE2d
854) (2013). However, “[i]n those cases, the litigation had been resolved[,] and the
only task remaining for the plaintiff was to have judgment entered.” Ogundele, 268
Ga. App. at 402. That, however, is not the procedural posture of this case, and,
therefore, this narrow exception to OCGA § 9-11-41 (e) is inapplicable here.
In conclusion, because Appellant’s original Baldwin action was automatically
dismissed in December 2015 and because her December 2017 renewal action was not
filed within six months of that dismissal – and was filed outside the statute of
limitation – we conclude that the trial court properly granted Appellees’ motion to
dismiss. Accordingly, we affirm.4
Judgment affirmed. Gobeil, J., concurs. Barnes, P. J., concurs specially.
4 While Appellant characterizes the automatic dismissal rule as “draconian” , the result here is a product of the plain language of OCGA § 9-11-41 (e); it is not up to this Court to create an exception to that legislatively created rule.
6 In the Court of Appeals of Georgia A20A2049. BALDWIN v. GAY et al.
BARNES, Presiding Judge, concurring specially.
I concur fully in the majority opinion but write separately to emphasize that
dismissal is a harsh result under the circumstances of this case.
As an initial matter, I agree with the majority that when no written order has
been entered in a case for a period of five years, the case is automatically dismissed
by operation of law under OCGA § 9-11-41 (e). That is the situation here, where the
trial court’s order granting a continuance was entered in Debra Baldwin’s wrongful
death action in December 2010, but no written order was entered in the next five
years. Hence, Baldwin’s action was automatically dismissed for want of prosecution
in December 2015, and because the action was not recommenced within six months from that date, Baldwin’s subsequent renewal action was properly dismissed as time-
barred. See OCGA § 9-2-60 (c).
Dismissal, however, is a harsh and unfair result in light of the record before us.
The five-year rule embodied in OCGA § 9-11-41 (e) has “the dual purpose of
preventing court records from becoming cluttered by unresolved and inactive
litigation and protecting litigants from dilatory counsel.” (Citation and punctuation
omitted.) Garibay v. Terry, 299 Ga. 701, 702 (791 SE2d 806) (2016). But this is not
a case whose continued pendency would serve only to clutter court records. Nor is
this a case involving dilatory counsel. Rather, in the years after the filing of her case,
Baldwin, through her counsel, conducted discovery, filed motions and briefs, wrote
letters to the court, and attended status conferences and hearings. In March 2015,
Baldwin’s counsel filed a motion for a special trial setting, noting that “Baldwin and
her counsel [had] written the Court several times . . . and communicated their desire
to see the case move forward.” The trial court never ruled on Baldwin’s motion.
Then, in June and September 2015, Baldwin’s counsel wrote letters again requesting
to have the case placed on the trial calendar, but received no response.
Additionally, as explained by the majority, this case involves the interplay
between two wrongful death suits assigned to the same trial judge – the suit filed by
Angela Washington and the suit filed by Baldwin. The December 2010 continuance
order entered by the trial court in the Baldwin suit was to remain in effect until the
court ruled on the motions to set aside and intervene that were filed in the
2 Washington suit. Notably, however, the trial court waited until October 2015 to rule
on those motions. The trial court’s failure to rule for such an extended period of time
caused significant delay in the Baldwin case, despite Baldwin’s efforts to move the
case forward and proceed to trial.
“While a plaintiff’s duty to obtain and file an order is mandatory [under OCGA
§ 9-11-41 (e)], no plaintiff can force a judge to sign an order. And it is unfortunate
that once a case has been dismissed by operation of law, the trial court is without
authority to order the action reinstated.” (Citations and punctuation omitted.)
McCallister v. Knowles, 302 Ga. App. 392, 394 (691 SE2d 280) (2010) (Doyle, J.,
concurring specially). In my view, the legislature should ameliorate the harshness of
OCGA § 9-11-41 (e) by amending the statute to include grounds for reinstating a case
that has been automatically dismissed. Cf. OCGA § 9-11-55 (b) (setting forth grounds
for reopening default).1 Although the result in the present case unfortunately is
mandated by the existing statutory framework, “[t]his is the type of case that should
be able to be reinstated.” McCallister, 302 Ga. App. at 394.
1 OCGA § 9-11-55 (b) provides in pertinent part: At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. . . .