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Miller v. Lomax

The trial court did not err in dismissing the plaintiffs' action pursuant to Georgia's 5-year rule, as no written order had been taken in the case for a period of five years.

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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.

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