Miller v. Lomax

• Decision Date: 06 July 2015
• Docket Number: No. A15A0447.,A15A0447.
• Citation: 773 S.E.2d 475,333 Ga.App. 402
• Parties: MILLER et al. v. LOMAX et al.
• Court: Georgia Court of Appeals

333 Ga.App. 402

773 S.E.2d 475

MILLER et al.

v.LOMAX et al.

No. A15A0447.

Court of Appeals of Georgia.

July 6, 2015.

Reconsideration Denied July 23, 2015.

Certiorari Denied Jan. 11, 2016.

Hurt Stolz, Irwin W. Stolz Jr., Athens, James D. Patrick Jr., for Appellants.

Jacob Beil, Richard A. Childs, Robert R. Lomax, Columbus, for Appellees.

Ray Hendrix, pro se.

Opinion

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 other 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, 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 USC § 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 written order dismissing the case and denying the motion for reconsideration.

On appeal, the plaintiffs challenge both the dismissal of their action and the denial of their motion for reconsideration. They argue that the five-year rule does not require the dismissal of their action for two reasons: because the withdrawal order filed during the second bankruptcy stay was a written order that was taken within the five-year period, and because their motion to recuse tolled the five-year period.

3. The effect of the withdrawal order.

The plaintiffs argue that the trial court erred in dismissing their action under the five-year rule because an order was taken within the applicable five-year period—namely, the order permitting counsel to withdraw from representation. We disagree. As detailed below, the withdrawal order was void because it was entered in violation of a bankruptcy stay.

Our Supreme Court has explained that there are three criteria that must be met for an order to prevent the automatic dismissal of an action under the five-year rule: the 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. ” Zepp, 283 Ga. at 396, 658 S.E.2d 567 (citations and punctuation omitted; emphasis supplied). Accordingly, “dismissal cannot be avoided even by obtaining a written order signed by the trial court until such order is duly entered in the record by filing it with the clerk.”Willis v. Columbus Medical Center, 306 Ga.App. 331, 332, 702 S.E.2d 673 (2010) (citation and punctuation omitted).

Before the withdrawal order was entered by filing with the clerk, however, the case became subject to an automatic bankruptcy stay under 11 USC § 362(a)(1). “Any orders or judgments entered in violation of [an] automatic bankruptcy stay are void; they are deemed without effect and are rendered an absolute nullity.” Jinks, 317 Ga.App. at 491, 731 S.E.2d 378 (citation and punctuation omitted). See McKeen v. FDIC, 274 Ga. 46, 48, 549 S.E.2d 104 (2001). Notwithstanding this principle, the plaintiffs make several arguments for why the withdrawal order should be given effect. We are not persuaded by those arguments.

(a) Ministerial act.

The plaintiffs' primary argument is that the entry of the withdrawal order by filing it with the clerk was a ministerial act that did not violate the bankruptcy stay. See Roberts v. Commr., 175 F.3d 889, 897(II) (B) (11th Cir.1999) (“ministerial acts or automatic occurrences that entail no deliberation, discretion, or judicial involvement ... do not constitute continuations of ... a proceeding” such that they would be subject to a bankruptcy stay) (citations omitted). In support of their argument, the plaintiffs cite the holding of the United States Court of Appeals for the Second Circuit in Rexnord Holdings v. Bidermann, 21 F.3d 522 (2d Cir.1994), that “the simple and ‘ministerial’ act of the entry of a judgment by the court clerk” is not a “continuation of a judicial proceeding” in violation of a bankruptcy stay. Id. at 527 (2).

The rationale of Rexnord Holdings is not applicable here. The court in that case based its holding on a determination that the “judicial proceedings were concluded at the moment the judge directed entry of judgment,” even though the judgment had not yet been filed. Id. at 528 (2) (emphasis supplied). Georgia law, however, provides that “no judgment shall be effective for any purpose ” until its entry, which occurs when it is filed with the clerk. OCGA § 9–11–58(b) (emphasis supplied). This principle has been extended by implication to include rulings on orders of any kind. In re Smith, 211 Ga.App. 493, 495(1), 439 S.E.2d 725 (1993).

Consequently, unlike in Rexnord Holdings, the trial court's ruling on the withdrawal motion was not “concluded” until the order on that motion was filed with the clerk. Before its filing, the signed order “was without legal effect.” Andrew L. Parks, Inc. v. SunTrust Bank, 248 Ga.App. 846, 847, 545 S.E.2d 31 (2001). And by the time it was filed, the trial court in this case “lack[ed] the ability to exercise judicial power or discretion or otherwise proceed with the case” on account of the bankruptcy stay. Jinks, 317 Ga.App. at 491, 731 S.E.2d 378 (citations omitted). As a result, unlike the judgment in Rexnord Holdings that operated to “ conclude” that proceeding even though it had not yet been filed, the signed withdrawal order in this case was a nullity because it was not filed at a time when the trial court had the ability to exercise judicial power in the case. See Andrew L. Parks, Inc., 248 Ga.App. at 847, 545 S.E.2d 31 (previously signed order was nullity because it was filed at a time when the trial court no longer had jurisdiction over the case); see also Gajaanan Investment v. Shahil & Sohail Corp., 323 Ga.App. 694, 696(1), 747 S.E.2d 713 (2013) (bankruptcy stay suspends state court's jurisdiction); Strauss Fuchs Organization v. LaFitte Investments, 177 Ga.App. 891, 893 –894(1), 341 S.E.2d 873 (1986) (analogizing effect of bankruptcy stay to state court's loss of jurisdiction when case is removed to federal court). See generally Doe v. Fireman's Fund Ins. Co., 287 Neb. 486, 843 N.W.2d 639, 643–644 (2014) ...