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
OCGA§§ 9-2-60 (b) and 9-11-41 (e) 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,
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.” (Citation and punctuation omitted.)
Republic Claims Svc. Co. v. Hoyal,
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, “[w]e 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,
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].
The “very point” is presented for adjudication in the case at bar, and we decline to give force to the dicta in
Tillett Bros,
because it was not necessary to resolve the issue before the Court and its implicit premise that the “plain language of OCGA § 9-2-60 (b)” required a tolling order to have been obtained by a party is without statutory basis. The apparent effort to provide a short-hand definition of a “housekeeping order,” i.e., an order that does not toll the five-year period, was not necessary because the orders described as “housekeeping” orders — an order setting or publishing a trial calendar for the cases listed therein or removing a case from an active trial calendar due to its age, do not qualify as tolling orders because such
orders generally are either not signed by the trial judge or filed in the record. See, e.g.,
Scott v. DeKalb County Hosp. Auth.,
supra,
We conclude that an order tolls the running of the five-year rule if it is in writing, signed by the trial judge, and properly entered in the records of the trial court. The trial court erred when, relying on the dicta in
Tillett Bros.,
it concluded that the written order scheduling a pre-trial conference and requiring the parties to prepare a pre-trial order, signed by the trial judge and properly entered in the records of the trial court, did not qualify as a tolling order because the order was not preceded by the motion of a party. To the extent the holdings in
McCombs v. Ga. Natural Gas Co.,
Judgment reversed.
Notes
Generally, mandamus is not an available remedy to require a judicial officer to perform a judicial function in a manner different from the way the judicial officer has performed it because mandamus is not available if there is another specific legal remedy (OCGA § 9-6-20), and a right of judicial review of the act of a judicial officer is a legal remedy.
Barber Fertilizer Co. v. Chason,
In the legal malpractice action, the court had issued an order denying a motion to exclude testimony on June 10, 2000. On December 14, 2004, and January 6, 2005, the trial court had entered orders setting a pre-trial conference in the case for February 17 and May 12, 2005, respectively, and ordering the parties to prepare a written proposed pre-trial order for presentation at the pre-trial conference.