Jinks v. Eastman Enterprises, Inc.
317 Ga. App. 489
Ga. Ct. App.2012Background
- The Spalding County State Court dismissed the Jinkses' complaint against Game Tracker, Inc. for having no written order for five years, under OCGA § 9-2-60 (b).
- The Jinkses appeal, arguing a court leave-of-absence order within the five-year period tolls the running of the period.
- The standard of review on appeal is de novo; the court found no plain legal error.
- The January 14, 2008 leave-of-absence order was entered during a bankruptcy stay and was void.
- Game Tracker filed for bankruptcy on October 15, 2004, staying state-court proceedings; relief from stay was granted May 30, 2008 and the case was set for a pre-trial conference July 1, 2011.
- Excluding the bankruptcy-stay period, more than five years elapsed without a valid written order, leading to dismissal by operation of law under OCGA § 9-2-60 (b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stay-violation voided the leave order and tolled the five-year rule | Jinks argues the leave order tolled | Game Tracker argues the leave order violated the stay and was void | Void order; dismissal affirmed |
Key Cases Cited
- Zepp v. Brannen, 283 Ga. 395 (2008) (tolling requires a valid written order signed by the trial judge)
- Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466 (2001) (automatic stay bars acts of judicial discretion; void acts)
- Jennings Enterprises v. Carte, 224 Ga. App. 538 (1997) (void acts undertaken in violation of the automatic stay)
- McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46 (2001) (voidness of stay-violating orders)
- Strauss Fuchs Organization v. LaFitte Investments, 177 Ga. App. 891 (1986) (jurisdiction suspended during bankruptcy stay)