McCallister v. Knowles

691 S.E.2d 280, 302 Ga. App. 392, 2010 Fulton County D. Rep. 470, 2010 Ga. App. LEXIS 137, 2010 WL 522682

• Court: Court of Appeals of Georgia
• Decided: February 16, 2010
• Docket: A09A1672
• Status: Published

Opinions

Adams, Judge.

Pursuant to OCGA §§ 9-11-41 (e) and 9-2-60 (b), civil actions in Georgia are dismissed by operation of law when “no written order is taken for a period of five years..." Zepp v. Brannen, 283 Ga. 395, 396 (658 SE2d 567) (2008). In this case, the appellants appeal the dismissal of their civil action pursuant to the five-year rule. The appellants contend the trial court erred by counting the five years from the date the complaint was filed instead of the date service of the answer was perfected.

The record shows the following relevant facts. The appellants filed suit on November 17, 2003 in the State Court of Spalding County. The defendants acknowledged service on December 19 and filed their answer on December 23, 2003. Although the parties engaged in some litigation efforts, the trial court did not enter a written order until December 17, 2008.

“In order to toll the running of the five-year period that results in automatic dismissal for non-action, ‘an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk.’ ” (Citations and punctuation omitted.) Zepp v. Brannen, 283 Ga. at 396. Thus, the end point for calculating the elapsed time in this case is December 17, 2008. If the beginning point is either the date the complaint was served or the date the answer was filed, the case should not have been dismissed. If the beginning point was the date the complaint was filed, the dismissal was proper. We affirm based on precedent holding that the beginning point is the date the complaint was filed.

In 1987, this court held that time begins to run on the date the complaint is filed regardless of when the answer is filed. Intl. Longshoremen’s Assn. v. Saunders, 182 Ga. App. 301, 302 (1) (355 SE2d 461) (1987). In that case, the appellant sought review of the denial of its motion to dismiss under the five-year rule. The appellee had filed suit on January 7, 1976, and the court did not file a written order until January 22, 1981, although the judge had in fact signed that order on December 10, 1980. Id. at 301-302. The trial court denied the motion on two grounds: “that the five-year period established by § 9-2-60 (b) did not begin to run until the defendant’s amended answer was filed in April 1976, making the single order in the case timely . . . ; and that the order was filed with the original trial judge on December 10, 1980.” Id. Thus, this Court first addressed the question of “the date on which the five-year period began to run.” Id. at 302 (1). Although service of the complaint was not discussed, this Court rejected the trial court’s conclusion that the period began to run when the answer was filed and held that it began to run on the date the complaint was filed. Id.

Here, the appellants contend that Saunders is not controlling because it did not address service of the complaint and because Georgia law provides that a suit is not pending until service has been perfected. See, e.g., Almon v. R. H. Macy & Co., 106 Ga. App. 123, 124 (2) (126 SE2d 641) (1962). Nevertheless, once service has been perfected, a suit’s commencement date is regarded as the date the complaint was filed:

It is true that an action “is not a ‘pending suit’ between the parties until after service of process.” (Punctuation omitted.) [Cit.] However, “[fjiling followed by service creates a pending suit from the date of filing.” [Cit.] See Taylor v. Kohlmeyer & Co. [123 Ga. App. 493 (1) (181 SE2d 496) (1971)] (although “service or waiver is essential,. . . when made it relates back to the date of filing, which establishes the date the action is commenced”). [Cit.] Thus, once the suit is served, it is the commencement that is key, and, as stated in OCGA § 9-11-3 (a), a “civil action is commenced by filing a complaint with the court.”

Kirkland v. Tamplin, 283 Ga. App. 596, 599 (2) (b) (642 SE2d 125) (2007) (suit filed in one county was considered as having been filed first based on time of filing even though service on the defendants in a similar suit in another county was achieved first).

Thus in this case, after service was achieved, commencement of the suit related back to the date the complaint was filed. The complaint was filed on November 17, 2003, and five years ran before the trial court entered a written order. Accordingly, the case was properly dismissed by operation of law. Goodwyn v. Carter, 252 Ga. App. 114, 116 (555 SE2d 474) (2001).

Judgment affirmed.

Blackburn, P. J., concurs. Doyle, J., concurs specially.