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McCallister v. Knowles

Dismissal was proper because the appellants filed their complaint on November 17, 2003, more than five years before the trial court entered an order on December 19, 2008.

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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. Id. 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.

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