Baldwin v. Gay

• Decision Date: 28 January 2021
• Docket Number: A20A2049
• Citation: 358 Ga.App. 213,854 S.E.2d 553
• Parties: BALDWIN v. GAY et al.
• Court: Georgia Court of Appeals

358 Ga.App. 213

854 S.E.2d 553

BALDWIN

v.GAY et al.

A20A2049

Court of Appeals of Georgia.

January 28, 2021

Patrick Alan Dawson, Lance A. Cooper, for Appellant.

Trevor Grant Hiestand, Atlanta, Luciana Aquino, for Appellee.

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, Colcraft (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.

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 S.E.2d 162 (2003). This "section has at least the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel." Swint v. Smith , 219 Ga. 532, 534 (3), 134 S.E.2d 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. McCallister v. Knowles , 302 Ga. App. 392, 392, 691 S.E.2d 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 S.E.2d 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.

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 should be applied in his case. See, e.g., Jefferson v. Ross , 250 Ga. 817, 301 S.E.2d 268 (1983) ; Georgia Dept. of Human Svcs. v. Patton , 322 Ga. App. 333, 744 S.E.2d 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, 602 S.E.2d 138. 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.

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...