Pilz v. Thibodeau

A jury selection notice, which the trial court sent on March 31, 2006, did not toll running of O.C.G.A. § § 9-2-60 b and 9-11-41 e's 5-year automatic dismissal period, since the clerk of court's office did not stamp the notice as filed, and nothing else in the record showed that the notice was properly entered into the court's records.

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Dave Pilz, Joy Pilz and Joy’s Playschool-Childcare, Inc. collectively, “the defendants” appeal from the trial court’s denial of their motion to dismiss the personal injury suit brought by Tyler Thibodeau and his parents, James and Michelle Thibodeau collectively, “the plaintiffs”.1 The defendants contend that, because the court had not filed a written order in the suit between May 3, 2001, and May 3, 2006, the suit stood automatically dismissed as of the latter date. In the alternative, they argue that the court should have dismissed the suit on the basis of laches. For the following reasons, we reverse. 1. The defendants contend the trial court erred in denying their motion to dismiss the plaintiffs’ complaint pursuant to the five-year dismissal rule, which is codified in OCGA § § 9-2-60 b and 9-11-41 e. OCGA § 9-2-60 b states as follows: “Any 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.”2 This provision is “mandatory and dismissal occurs by operation of law. In order to break the running of the five-year dormancy period, the order has to be in writing, signed and entered.” Citations omitted. Loftin v. Prudential Property &c. Ins. Co. , 193 Ga. App. 514 388 SE2d 525 1989.

The record shows that the plaintiffs filed a personal injury suit against the defendants on January 6, 1999, asserting claims for both negligent and intentional torts.3 On May 3, 2001, the trial court entered an order denying the plaintiffs’ motion for a protective order. Then, on March 31, 2006, within the five-year dismissal period, the trial court sent a notice of jury selection to the parties.

Pilz v. Thibodeau

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