Renewal Action Time Barred for Failure to Prosecute

In August 2004, Herbert Washington was killed in an accident with Jack DeWayne Gay. Herbert’s daughter, Angela Washington, filed suit in October 2004 against Gay and his employer Colcraft, Inc. Angela’s suit was settled in October 2005 and her action dismissed. In August 2006, Debra Baldwin, another of Herbert’s daughters, filed suit against Gay and his employer. Gay filed a motion to reopen the suit filed by Angela contending Angela was required to distribute the proceeds to Herbert’s heirs. Baldwin moved to intervene.


In the action filed by Baldwin, the parties filed a joint motion to continue until a decision was reached in the action previously filed by Angela. In December 2010, the trial court granted the parties motion. In October 2015, the trial court denied the motions pending in the suit previously filed by Angela. No further orders were entered in Baldwin’s action and in November 2017, Baldwin dismissed her suit without prejudice.


Baldwin filed suit in December 2017 pursuant to the renewal statute. Gay moved to dismiss contending Baldwin’s action was time barred because her original suit was automatically dismissed due to a failure to prosecute. The trial court agreed and dismissed Baldwin’s December 2017 suit. Baldwin appealed the decision, contending her original action should not have been automatically dismissed because she was not dilatory as she was active in both her case and in the suit filed by Angela.


The Court of Appeals disagreed noting that “the litigation efforts of the parties are insufficient to satisfy the requirements of OCGA §9-11-41.” To comply with O.C.G.A. §9-11-41 the Court of Appeals indicated, “the burden is on the plaintiff to obtain a written order of continuance or other written order at some time during the five-year period and to make sure the same is entered in the record.”


Baldwin also argued that the order denying the motion to reopen and intervene in Angela’s action satisfied the five-year requirement. The Court of Appeals disagreed, noting that though the cases arose out of the same set of facts, the connections between the two cases were tenuous since Angela’s case had been dismissed several years prior.


Finally, Baldwin argued that the Court of Appeals should recognize an exception to the five-year requirement of O.C.G.A. §9-11-41. The Court of Appeals indicated that only one exception is recognized, where the litigation has been resolved and the only task remaining is entry of the judgment. The Court of Appeals noted the exception did not apply to Baldwin’s case.


In the concurring opinion of Judge Barnes, she noted Baldwin’s counsel had filed multiple motions with the trial court, participated in discovery, participated in status conferences, and requested the matter be placed on a trial docket. However, the trial court never ruled on the motions or entered any other order. Judge Barnes noted, “[w]hile a plaintiff’s duty to obtain and file an order is mandatory [under OCGA § 9-11-41 (e)], no plaintiff can force a judge to sign an order.” Even so, Judge Barnes agreed that under the statute as written, Baldwin’s case should have been dismissed for want of prosecution.


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