In March 2006, appellee Chief Judge Perry Brannen, Jr., notified the parties in a legal malpractice action filed in the Superior Court of Chatham County and assigned to Chief Judge Brannen that the lawsuit had been automatically dismissed by operation of law in January 2005 under the “five-year rule” set out in OCGA § § 9-2-60b and 9-11-41e, and that the six-month period within which the action could be re-commenced had expired in July 2005. After Chief Judge Brannen declined the request to memorialize his determination in a written order, appellant Amy Zepp, the plaintiff in the legal malpractice action, filed a petition for writ of mandamus seeking to compel Chief Judge Brannen and appellee Dan Massey, the Clerk of the Superior Court of Chatham County, to recognize that her legal malpractice case is still pending. 1 The trial court dismissed the petition for mandamus after determining appellant had no legal right to the relief, the trial court having found that written orders setting a pre-trial conference, signed by Chief Judge Brannen and filed in the record of the legal malpractice action, did not suspend the running of the “five-year rule” because they had not been initiated by the motion of either party, thereby making the signed, written, and filed orders “mere housekeeping or administrative orders” that did not suspend the running of the five-year period.2 This appeal followed. OCGA § § 9-2-60b and § 9-11-41e are the statutory embodiment of the “five-year rule.” Together, they 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 . . . .” The legislative intent in enacting the precursor statute in 1953 “was to remove from trial courts those cases whose continued pendency only clutter the dockets” City of Chamblee v. Village of North Atlanta , 217 Ga. 517 3b 123 SE2d 663 1962, generally, the “great number of cases which, to all intents and purposes had been abandoned by both parties, and in many instances had been settled without clearing the docket . . . .” Lewis v. Price , 104 Ga. App. 473 2 122 SE2d 129 1961. The statute also serves to protect litigants from dilatory counsel. See Ga. Dept. of Med. Assistance v. Columbia Convalescent Ctr. , 265 Ga. 638 1 458 SE2d 635 1995; Swint v. Smith , 219 Ga. 532 3 134 SE2d 595 1964.
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.” Republic Claims Service Co. v. Hoyal , 264 Ga. 127, 128 441 SE2d 755 1994; Scott v. DeKalb County Hosp. Auth. , 168 Ga. App. 548 1 309 SE2d 635 1983. These criteria mirror the statutory requirements for entry of a judgment OCGA § 9-11-58 and are a “bright-line rule of enforcement” that further the statutory dual purposes “by adding certainty and objective consistency to the manner in which its provisions are applied.” DOT v. Tillett Bros. Constr. Co. , 264 Ga. 219, 220 443 SE2d 610 1994. A written, signed, and properly-filed order need not advance or resolve the litigation, grant or deny affirmative relief, or have been obtained by the party seeking to use it to toll the running of the five-year rule in order to qualify as a tolling order. Id., at 221. The order at issue in Tillett Bros. met the criteria to toll the running of the five-year rule because it was written, signed by the trial judge and properly entered in the records of the trial court. We sua sponte added another requirement —that a tolling order must be one entered in response to a motion initiated by a party. That addition was obiter dicta lacking the force of an adjudication because it was a statement in an opinion “concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand . . . .” Black’s Law Dictionary, p. 541 4th ed. 1968. As the U.S. Supreme Court recently noted, “We are not bound to follow our dicta in a prior case where the point now at issue was not fully debated.” Central Virginia Community College v. Katz , 546 U.S. 356, __ 126 SC 990, 996, 163 LE2d 945 2007. We keep in mind the statement of Chief Justice Marshall in Cohens v. Virginia , 6 Wheat. 264, 399-400 5 LE 257 1821, “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for adjudication.”
