443 S.E.2d 610 | Ga. | 1994
On July 22, 1985, the Georgia Department of Transportation (“DOT”) filed a complaint against Tillett Brothers Construction Company, Incorporated (“Tillett”) seeking money damages for Tillett’s alleged breach of a certain DOT contract. Tillett answered the complaint and filed a counterclaim against DOT on August 23, 1985. On December 4,1985, in response to DOT’s unopposed motion to stay discovery, the trial judge issued and had filed a signed order advising the parties and the court clerk’s office that the action was to be placed on the court’s “inactive list.” No further action was taken by
On DOT’s motion, the trial court dismissed Tillett’s renewal action as untimely under OCGA § 9-2-60 (b) because no written order had been entered in the previous action for more than five years and, therefore, the action was automatically dismissed as of August 23, 1990. The Court of Appeals reversed in Tillett Bros. Constr. Co. v. Dept. of Transp., 210 Ga. App. 84 (435 SE2d 241) (1993), holding that the court’s December 4, 1985 order placing the action on the “inactive list” was a written order within the meaning of the automatic dismissal statute, OCGA § 9-2-60 (b), thereby tolling the running of the five-year rule. We granted certiorari and affirm.
DOT argues that the December 4, 1985 order is not an order within the meaning of § 9-2-60 (b) because it was not obtained by Tillett and because the court does not maintain an “inactive” case list. For these reasons, DOT contends, the December 4, 1985 order was insufficient to toll the running of the five-year period and Tillett’s renewal action was untimely filed.
OCGA § 9-2-60 (b) provides that any action “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.”
Applying this definition of an “order,” a grant of a leave of absence, Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (1989), a grant of a continuance, Swint, supra, and OCGA § 9-2-60 (a), an order allowing an amendment to a petition, Butler v. Claxton, 221 Ga. 620 (146 SE2d 763) (1966), and an interlocutory order, Burgess v. State, 221 Ga. 586 (146 SE2d 288) (1965),
The written order issued by the court on December 4, 1985 was signed by the trial judge and entered in the records of the court in response to DOT’s motion to stay discovery. Inasmuch as the December 4, 1985 order complied with the requirements of § 9-2-60 (b), the previous action was dismissed by operation of law on December 4, 1990 and Tillett’s renewal action was timely filed on May 31, 1991. The trial court’s dismissal of the renewal action on the basis that it was untimely filed was erroneous.
Judgment affirmed.
The provisions of this section are mandatory and dismissal occurs by operation of law. Swint v. Smith, 219 Ga. 532 (1) (134 SE2d 595) (1964); Stephens v. Stovall &c., 184 Ga. App. 78, 79 (1) (360 SE2d 638) (1987).