Friday, July 22, 2016

Georgia's Offer of Settlement Statute: OCGA § 9-11-68 (2015 Revisions) :: Shifting Attorney's Fees to the Loser in Litigation

Hugh C. Wood, Attorney

 This paper will: 1) review the mechanics of OCGA § 9-11-68, 2) it will review the subparts of the statute, 3) it will review the “good faith” portion of the statute, 4) it will review the jury driven homologue to OCGA § 9-15-14 and 5) it will review recent Georgia cases decided under OCGA § 9-11-68.  
      A. The Offer of Settlement Statute: OCGA § 9-11-68
OCGA § 9-11-68. Offer of Settlement
(a) At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the Court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. Any offer under this Code section must:
(1) Be in writing and state that it is being made pursuant to this Code section;
(2) Identify the party or parties making the proposal and the party or parties to whom the proposal is being made;
(3) Identify generally the claim or claims the proposal is attempting to resolve;
(4) State with particularity any relevant conditions;
(5) State the total amount of the proposal;
(6) State with particularity the amount proposed to settle a claim for punitive damages, if any;
(7) State whether the proposal includes attorney´s fees or other expenses and whether attorney´s fees or other expenses are part of the legal claim; and
(8) Include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5.
(b)(1) If a defendant makes an Offer of Settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney ´s fees and expenses of litigation incurred by the defendant or on the defendant ´s behalf from the date of the rejection of the Offer of Settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such Offer of Settlement.
(2) If a plaintiff makes an Offer of Settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such Offer of Settlement, the plaintiff shall be entitled to recover reasonable attorney ´s fees and expenses of litigation incurred by the plaintiff or on the plaintiff ´s behalf from the date of the rejection of the Offer of Settlement through the entry of judgment.
(c) Any offer made under this Code section shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney´s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period). A counteroffer shall be deemed a rejection but may serve as an offer under this Code section if it is specifically denominated as an offer under this Code section. Acceptance or rejection of the offer by the offeree must be in writing and served upon the offeror. An offer that is neither withdrawn nor accepted within 30 days shall be deemed rejected. The fact that an offer is made but not accepted does not preclude a subsequent offer. Evidence of an offer is not admissible except in proceedings to enforce a settlement or to determine reasonable attorney´s fees and costs under this Code section.
(d)(1) The Court shall order the payment of attorney ´s fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of either paragraph (1) or paragraph (2) of subsection (b) of this Code section apply; provided, however, that if an appeal is taken from such judgment, the Court shall order payment of such attorney ´s fees and expenses of litigation only upon remittitur affirming such judgment.
(2) If a party is entitled to costs and fees pursuant to the provisions of this Code section, the Court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the Court may disallow an award of attorney´s fees and costs.
(e) Upon motion by the prevailing party at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact determine whether the opposing party presented a frivolous claim or defense. In such event, the Court shall hold a separate bifurcated hearing at which the finder of fact shall make a determination of whether such frivolous claims or defenses were asserted and to award damages, if any, against the party presenting such frivolous claims or defenses. Under this subsection:
(1) Frivolous claims shall include, but are not limited to, the following:
(A) A claim, defense, or other position that lacks substantial justification or that is not made in good faith or that is made with malice or a wrongful purpose, as those terms are defined in Code Section 51-7-80;
(B) A claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a Court would accept the asserted claim, defense, or other position; and
(C) A claim, defense, or other position that was interposed for delay or harassment;
(2) Damages awarded may include reasonable and necessary attorney´s fees and expenses of litigation; and(3) A party may elect to pursue either the procedure specified in this subsection or the procedure specified in Code Section 9-15-14, but not both. History. Amended by 2006 Ga. Laws 589, §1, eff. 4/27/2006.
Added by 2005 Ga. Laws 1, §5, eff. 2/16/2005.
      B. The Mechanics of the Statute
      OCGA § 9-11-68(a): The statute applies only to tort cases. While this author is certain that some creative practitioners will attempt to expand the scope of this charming statute to probate, hybrid-contract actions and other actions, it by its language, presently only applies to “tort” actions. Thus, your case must have the prerequisite of a tort claim to be able to make an Offer of Settlement. [1]
      With regard to timing, the offer may only be made thirty (30) days after the service of the summons and complaint (Note: it does not refer to the Answer, but only service) and not less than thirty (30) days before trial.
      Assuming that your case has a tort claim and the offer is made within the proper timing parameters (thirty (30) days after service or thirty (30) days before trial) then it must contain the following elements:
      OCGA § 9-11-68(a)(1): It must be in writing and it must specifically state that it is made under the Offer of Settlement statute 9-11-68;
      OCGA § 9-11-68(a)(2): It must particularly identify which parties are making the offer [assuming that there are multiple parties in addition to a simply plaintiff and defendant]; it must also identify the target of the offer;
      OCGA § 9-11-68(a)(3): It must identify, generally, the claim or claims concerning which the Offer desired to settle; [2]
      OCGA § 9-11-68(a)(4): The offer must “state with particularity any relevant conditions.” What is the legal meaning of “relevant conditions?” This definition escapes this author.
      OCGA § 9-11-68(a)(5): The offer must state the total dollar ($) amount of the proposal.
      OCGA § 9-11-68(a)(6): The offer must state with particularity the amount that offeror proposes to settle any punitive damage claim;
      OCGA § 9-11-68(a)(7): The offer must state specifically whether it includes “attorney’s fees” and/or other expenses and whether attorney’s fees or other expenses are part of the underlying legal claim;
      OCGA § 9-11-68(a)(8): The offer must include a certificate of service and be served by certified or statutory overnight delivery (read that UPS or FedEx) in the form required by OCGA § 9-11-5.
      Under Section OCGA § 9-11-68 (c) any offer made must remain open for Thirty 30 days unless withdrawn in writing served on the Offeree prior to acceptance. [3]
      OCGA § 9-11-68(b). Liability for a Rejected Offer. It is somewhat difficult to state the liability for a rejected offer, however:
      If defendant makes an Offer and it is rejected, plaintiff must beat the offer at trial by, at least, 75% of the rejected offer or pay defendant’s attorney’s fees.
      If plaintiff makes an Offer and it is rejected, defendant is not liable for plaintiff’s attorney’s fees unless plaintiff beats the rejected offer by 125% of the amount of the offer.
       C. The Good Faith Defense
       The statute appears to allow the trial Court, upon motion of the non prevailing party under an Offer of Settlement, to request that the Court find that Offeror knew that Offer of Settlement was not made “in good faith”. OCGA § 9-11-68(d)(2). If the Court finds the offer was not made in good faith, then the Offer of Settlement is just considered either void or null.
       D. The Jury Version Homologue of OCGA § 9-15-14
       OCGA § 9-11-68(e). The 1987 enactment of OCGA § 9-15-14 motion for attorney’s fees for frivolous litigation and claims was supposed to be the remedy enacted by the legislature which merged all common law claims of malicious abuse and malicious use of prosecution into one statute. However, since the enactment of OCGA § 9-15-14, we have seen the enactment of OCGA § 51-7-80 through 85 and now a jury-driven version of OCGA § 9-15-14. Under subparagraph (e) of OCGA § 9-11-68 a prevailing party at the end of a jury trial may move the Court to allow the jury (then impaneled) to hear a bifurcated discussion of whether the claims advanced by the non prevailing party were frivolous, lacked substantial justification or were not made in good faith.
       If the jury finds that those claims were made during trial were frivolous then and in that event the jury may proceed to award damages against the non-prevailing party pursuant to OCGA § 9-11-68(e). It is possible that a motion under subparagraph (e) may be made to the judge; however, it is clear that the General Assembly wanted to give the prevailing party the opportunity to present frivolous claims to the jury then impaneled.
       A prevailing party may not use both OCGA § 9-15-14 and OCGA § 9-11-68(e) for the same factual conduct by the non-prevailing party.
A. 2015 Cases   
1. Alessi v. Cornerstone Associates, Inc., 334 Ga.App. 490, 780 S.E.2d 15 (2015).
    No OCGA § 9 11 68 awards in Arbitration.  The case involved homeowners purchasing a house from Cornerstone Associates Inc. in Locust Grove, Georgia.  The contractor purchase indicated that binding arbitration would be conducted before an arbitrator named by Cornerstone.  The year before the arbitration Cornerstone offered the homeowners an OCGA § 9 11 68 offer of $3,000.00 to settle the claim.  The homeowners proceeded to binding arbitration pursuant to the contract and recovered nothing as did Cornerstone.  Both sides received nothing in arbitration.  Based upon the fact that homeowner did not exceed or meet the $3,000.00 by 75 percent at the arbitration, Cornerstone brought a motion in the trial court for the $67,268.41 it had spent in defending the case.  The Superior Court of Paulding County awarded the attorney's fees pursuant to OCGA § 9 11 68 and homeowner appeal.  The Court of Appeals and apparently what appears to be a case of first impression determined that OCGA § 9 11 68 attorney's fees applies only in the context of court driven civil litigation.  The Court of Appeals reasoned that the statute should be granted in strict construction and 9 11 68 that the general assembly made no reference to alternative dispute resolution in the statute.  Also, by the use of the word trial, the general assembly must have intended to exclude Award in arbitration.  Thus, 9 11 68 does not apply in arbitration.  [The underlying case was discussed last year at Alessi, et al. v. Cornerstone Associates, Inc., 329 Ga.App. 420, 765 S.E.2d 630 (2014).]
2. Tiller v. RJJB Associates, LLP, 331 Ga.App. 622, 770 S.E.2d 883 (2015).
      Award Reversed for Vagueness.  The Court of Appeals reversed a grant of OCGA § 9 11 68 to a shopping center mall operated that housed anchor store J. C. Penney in the amount of $24,696.28.  While the corporation for the mall obtained summary judgment against a slip and fall plaintiff and the slip and fall plaintiff recovered nothing, the Court of Appeals held that the offer was too vague to be unenforceable.  Particularly, the movant under OCGA § 9 11 68 sent an OCGA § 9 11 68 of settlement which referred to provisions of the complaint.  Because the slip and fall plaintiff had filed a lengthy amended complaint the Court of Appeals held that the offer could not be accepted as written.  This is yet another case that describes the importance of confirming the OCGA § 9 11 68 letter to the exact facts of the case in order to be enforced. 
3. Bell v. Waffle House, Inc., 331 Ga.App. 443, 771 S.E.2d 132 (2015)
    No Fee Hearing Required if not Requested.   In an OCGA § 9 11 68 award of attorney's fees in favor of Waffle House in the amount of $27,276.37, the Court of Appeals affirmed the award even though no evidentiary hearing was held.  Generally under OCGA § 9 11 68 (as is required under OCGA § 9 15 14 (a hearing is required pursuant to OCGA § 9 11 68 (e)).  The Court of Appeals affirmed because the plaintiff Bell (against whom the award was made) failed to formally request a hearing in his moving papers and waived it by the language of his motion.  Thus, the fee award was affirmed without a necessity of a hearing.
B. 2014 Cases
       In Couch II, infra, the Supreme Court applied OCGA § 9-11-68 to the State of Georgia and held that sovereign immunity was waived as to an attorney fee application against the State.  In Crane Composites, infra, the court held that OCGA § 9-11-68 may be applied when the injury occurred before the date of the statute but the action was filed after the date of the statute.  And in the second appearance of Canton Plaza, infra, again reveals that to obtain an OCGA § 9-11-68 award that will survive appeal requires segregation of attorney’s fees to the negligence report claim on which the losing party failed to accept the tendered offer.

1. Ga. Department of Corrections v. Couch, 295 Ga. 469, 759 S.E.2d 804 (2014) (Couch II ) reversing Ga. Department of Corrections v. Couch, 322 Ga.App. 234, 744 S.E.2d 432 (2013).
      Sovereign Immunity Waived OCGA § 9-11-68.  David Lee Couch filed a tort lawsuit against the Georgia Department of Corrections. After the Department rejected Couch's offer to settle the case for $24, 000, the case proceeded to trial, where the jury returned a verdict for Couch in the amount of $105, 417. Based on Couch's 40% contingency fee agreement with his attorneys, the trial court ordered the Department to pay Couch $49,542 in attorney fees – 40% of his total recovery, after appeal, including post-judgment interest – as well as $4,782 in litigation expenses, pursuant to the "offer of settlement" statute, OCGA § 9-11-68 (b) (2). [The contingent award was reversed on appeal.  It consisted in part of fees on appeal which are not within the statute.  It seems somewhat unclear whether a contingent fee may stand (alone) for an award under OCGA § 9-11-68.] 

      This Supreme Court then granted certiorari to address sovereign immunity.
      1.     Did the Court of Appeals err when it held that the sovereign immunity of the Department was waived by the Georgia Tort Claims Act as to Couch's attorney fees?
      2.     If the sovereign immunity of the Department was waived as to Couch's attorney fees, did the Court of Appeals err by failing to prorate the 40% contingency fee to reflect that some of the fees were incurred before the settlement offer was rejected?
   For the reasons discussed below, we hold that the sovereign immunity of the Department was waived as to the attorney fees award under OCGA § 9-11-68 (b).

2. Crane Composites, Inc. v. Wayne Farms, LLC, et al., 296 Ga. 271, 765 S.E.2d 921 (2014) 
      The question for decision in this case is whether OCGA § 9-11-68, can be applied to a negligence action in which the injury occurred prior to the effective date of the statute, but in which the action was filed after that date.  The Court answered this question affirmatively and, in so doing, they overruled L. P. Gas Industrial Equipment Co. v. Burch, 306 Ga.App. 156, 701 S.E.2d 602 (2010).
3. McCarthy, et. al. v.  Yamaha Motor Man. Corp., 994 F.Supp.2d 1329 (N.D.Ga. 2014).
    In an unusual case the United States District Court for the Northern District of Georgia applied Georgia's fee shifting statute under OCGA § 9-11-68 to a personal injury claim that occurred in Queensland, Australia.  The plaintiff was severely injured, with spinal injuries, in a Yamaha WaveRunner™ accident in Queensland.  The Yamaha WaveRunner™ was manufactured by Yamaha in Newnan, Georgia.
    The plaintiff chose to sue in the United States District Court for the Northern District of Georgia instead of the Commonwealth Courts in Queensland, Australia.  The Court accepted the claim based on diversity pursuant to 28 U.S.C. § 1332 and retained the case.  While the Court's order only proceeds through the application of which law shall apply, the parties struggled concerning whether to apply the legal standards of Australia or Georgia. 
      For simplicity Georgia tends not to apply fixed caps to products liability claims or punitive damages whereas the Commonwealth Courts in Queensland apply a cap of approximately $230,000.00 (AUD) to compensatory damages (general damages including emotional distress, pain and suffering and other economic damages and Australia provides a $274,000.00 (AUD) cap on strict liability claims.)  Australia also capped lost income.  The plaintiffs argued for the application of Georgia law even though the injury occurred in Australia and the Court eventually applied Australian law.  The plaintiff was unable to show that the public policy of Georgia was such that Australian caps on damages and punitive damages should not be applied.
    However, the determination of attorneys' fees was decided by the Court to apply Georgia law.  Australian expert affidavits showed that Queensland would apply the "English rule," that generally provides the winner of the lawsuit is able to shift the attorneys' fees to the loser.  Georgia, instead, applies statutory fee shifting including, which the Court discussed at some length.  Because the Australia law was general common law in Georgia had specific statutes on point, including OCGA  § 9-11-68, the Court decided to apply the specific Georgia statute instead of the general common law of Australia on attorneys' fees.
    The resolution of the case is not revealed in the published Order.
      4.    Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC v. Teledyne Technologies, Inc., 090913 GANDC, 1:12-cv-0686-JEC
    OCGA § 9 11 68 is mentioned as part of an Order in case by an Atlanta law firm to collect its fees.  The law firm prevailed on the collection of fees.   However, the Order contains a discussion of the denial of the application of OCGA § 9 11 68.
    In the underlying case (which generated the fee litigation based on losing Defendant’s nonpayment of the law firms fees) Plaintiff’s (in the underlying case) asked the jury for $17,000,000.00.  The jury returned $1,700,000.00.  Defendant offered $3,000,000.00 prior to trial to settle, apparently within OCGA § 9 11 68(a).  The Court refused to apply the fee shifting statute citing the offer as 5 days late.  While perhaps obvious on the application of the statute, this Order again shows the rigid application of this statute and how every part of the offer must come within the four (4) corners of the statute.
C. 2013 Cases

1. Canton Plaza, Inc. et al. v. Regions Bank, Inc., 325 Ga.App. 361, 749 S.E.2d 825 (2013)
      Bank failed to segregate the fees and expenses associated with prosecuting its counterclaims, tort and contract.  Fee award reversed.  Canton Plaza, Inc. and Chaim Oami (" the plaintiffs" ) appeal from an award of attorney fees and expenses in favor of Regions Bank, Inc. (" the Bank" ) under OCGA § 9-11-68, Georgia's offer of settlement statute. The plaintiffs contended that the trial court erred in awarding the Bank its attorney fees and expenses because the Bank failed to segregate its recoverable fees and expenses from those which were non-recoverable; and, because the award, as against plaintiff Oami, was inappropriate.  Fee award reversed and remanded for hearing on segregated fee claims.
2. Graham, et al. v. HHC FT Simons, Inc., 322 Ga.App. 693, 746 S.E.2d 157 (2013).
    OCGA § 9-11-68 offer must be accepted according to its strict terms or will be vacated.  This OCGA § 9-11-68 case seems to turn more on the ordinary rules concerning offer, acceptance and consideration than the specifics of OCGA § 9-11-68.  In Graham, supra, the father (Graham, Sr.) brought a wrongful death action against a mental health facility at Saint Simons Island for the wrongful discharge of his son.  His son killed himself eight hours after he was discharged.
    In the interplay of offer, acceptance and consideration, the defendant mental health facility sent an OCGA § 9-11-68 offer of compromise offering $100,000.00 in exchange for the standard dismissal and other events associated with the OCGA § 9-11-68 offer.  Within the 30 days Graham rejected the offer and requested $200,000.00 by counter-offer.  In what can only be derived between the lines as bad drafting, the mental health facility rejected the $200,000.00 counteroffer and "reiterated" its $100,000.00 offer.  Graham purportedly tried to accept, during that period of time the court granted summary judgment to the mental health facility and the mental health facility stood on the dismissal and refused to pay the $100,000.00 settlement.
    On appeal the Court of Appeals found that the OCGA § 9-11-68 reiteration offer required that the plaintiff do certain things including dismiss the action.  Even though the language of the second reiteration was murky, the plaintiff may have been able to accept if it had dismissed but it did not.  Since the case remained pending while it attempted to accept there was no clear acceptance pursuant to the specific rule of OCGA § 9-11-68 did not apply to the reiteration. 
3. Eaddy v. Precision Franchising, LLC, 320 Ga.App. 667, 739 S.E.2d 410 (2013)
      Settlement agreement between franchisor and franchisee's liability insurer did not prevent franchisor from seeking an award of attorney fees from individual pursuant to the offer of judgment statute.   Eaddy v. Precision Franchising, LLC, supra, shows that a successful plaintiff can face attorneys’ fees by one defendant on an OCGA § 9-11-68 motion despite a relatively successful conclusion in the outcome.
    The opinion doesn’t seem to state all of the necessary facts to understand what occurred in the trial court; however, Eaddy was apparently beaten up at an automobile service business (that is not named in the case) for which Precision Franchising, LLC was the franchisor.
    Eaddy apparently sued the local automobile establishment, the individual who actually hit him and its franchisor Precision Franchising, LLC.  The disclosed insurance company, Central Mutual Insurance Company, refused to provide a defense for Precision (franchisor) and Precision apparently provided its own attorneys paid for out of its pocket.
    Eaddy’s damages must have been significant.  Early on in the litigation Precision Franchising (not the local store but the national franchising company) made a $1,000.00 offer to settle pursuant to OCGA § 9-11-68.  Eaddy rejected this by refusal to respond within 30 days.  Shortly thereafter, the trial court granted summary judgment only as to the franchisor, Precision Franchising, LLC’s claims against Eaddy.
    Eaddy appealed the grant summary judgment.  While that appeal was pending, Eaddy settled with Central Mutual and eliminated all claims against the remaining defendants including  the local store.  The settlement took out any potential liability Precision would have if the appeal was reversed.  Thus, Eaddy achieved $200,000.00 for the altercation based on that settlement.
    Meanwhile Precision sued Central Mutual for nonpayment of its attorneys’ fees in defending the claim and was able to extract $118,000.00 over Central Mutual’s refusal to pay for attorneys to defend Precision during the lawsuit.
    As if matters can’t get stranger in the world of OCGA § 9-11-68 after all of the settlements are completed but the claims remained pending in the trial court, Precision moved on its OCGA § 9-11-68 Motion (for which it had originally only offered $1,000.00 to clear Eaddy off a claim that he eventually recovered $200,000.00) for the attorneys’ fees necessary to obtain the grant of summary of judgment against Eaddy.  Recall, Precision Financing (the parent franchisor) was successful in eliminating Eaddy’s claims despite the fact if Eaddy eventually settled with the other defendants.  A hearing was held on Precision Franchisor’s OCGA § 9-11-68 claim against Eaddy and the trail court awarded $28,656.37 of attorneys’ fees against Eaddy to the parent franchisor.  That amount was affirmed on appeal.
    This case shows how OCGA § 9-11-68 continues to play out in unusual circumstances.  Despite the fact that Eaddy recovered a substantial amount against the local defendants, he did not recover against the national franchisor.  The national franchisor (apparently having ultimately no liability to anyone) was able to recover $28,000.00 from Eaddy under OCGA § 9-11-68 even though it would appear at the outset that Eaddy was reasonable in rejecting the $1,000 offer of settlement. 
4. Gowen Oil Company v. Biju Abraham, et al., 511 F. App’x, 930, 936 (11th Cir. 2013).

      A frivolous case can generate a massive fee claim.   In the 2013 overview of this area of the law, Gowen Oil Company v. Biju Abraham, et al, stands out as the poster-child for an OCGA § 9-11-68 award of attorney's fees in Federal court.
    In that convoluted legal malpractice case where Abraham asserts that his former counsel Greenberg Traurig, LLP preferred some of his existing clients over Abraham and caused him damages based on the sale of convenience stores in south Georgia, his action to sue Greenberg Traurig backfired significantly in attorney's fees.  As stated in the Southern District of Georgia trial court, Greenberg Traurig offered $63,000.00 early on to settle the claim and be done with it.  The case continued for a number of months whereupon the Southern District of Georgia granted summary judgment in favor of Greenberg Traurig and awarded in excess of $300,000.00 of attorney's fees (primarily generated by Rogers & Harden of Atlanta) against Plaintiff.
    The trial court found that the case was without merit, that the attorney's fees were appropriate, that it really didn't make any difference whether they used Atlanta attorney's fees or Brunswick-based attorney's fees because the amounts were similar based on a 10 percent discount, that paralegal fees were recoverable and (more specifically) that defendant is entitled to determine how many paralegals and lawyers it intends to use to defend the case within reason and the fact that plaintiff used only two lawyers and two paralegals did not control what resources Greenberg Traurig felt were necessary to defend itself.
    Perhaps one of the more cogent arguments is that appellant argued Greenberg Traurig should not be entitled to attorney's fees because those fees were covered by an insurance policy for legal malpractice.  The court rejected that argument and did not weigh into the possibility of a double recovery where the attorney's fees were recovered despite the fact they'd been paid for by insurance.  The court simply said that OCGA § 9-11-68 is designed to encourage settlements and it refused to look at whether the fact that fees were covered by insurance.  Malpractice insurance did not insulate Gowen from the payment of legal fees and expenses under OCGA § 9-11-68.  
A. Paying A Big Firm's Fees In A Plaintiff's Loss; Gowen Oil Company
    A plaintiff in the Southern District of Georgia ended up paying a large firms attorneys' fees of $300,000.00 for a loss on a Motion for Summary Judgment in a complex case.
    Plaintiff Gowen Oil Company, Inc. ("Gowen") sued Greenberg Traurig for legal work done by Greenberg Traurig for its previous client Biju Abraham.  While the facts are somewhat complex, Gowen asserted that Greenberg Traurig conspired with its prior client Abraham to interfere with Gowen's contractual rights to purchase a number of filling stations in Georgia.  Gowen Oil Company, Inc., v. Biju Abraham; Greenberg Traurig, LLP, United States District Court for the Southern District of Georgia, CV-210-157 (March 30, 2012).
    Gowen asserted that Greenberg Traurig tortuously interfered with Gowen's Right of First Refusal with regard to a pending sale of the filling stations.  Gowen asserted violations of Georgia's Bulk Transfer Act in Superior Court.  Greenberg Traurig (or perhaps another defendant) removed the case to the Southern District of Georgia based on diversity jurisdiction.
    According to the Court, the case was complex, involved extensive discovery and substantial motion practice.  Both parties sought extended discovery due to the large number of parties and witnesses and some discovery was necessary outside of the United States. 
    This case is particularly instructive for the application of Georgia's OCGA § 9-11-68 attorney's fees statute when applied in federal court.  At least at the district level, OCGA § 9-11-68 has been found to be substantive law.  Given that it's substantive, a federal court sitting in diversity must apply it as the rule of decision.
    Greenberg Traurig hired outside counsel of Rogers & Hardin in Atlanta and while discovery was pending Rogers & Hardin sent an OCGA § 9-11-68 offer of settlement.  While the amount is not referred to in the case, a review of the docket on Pacer shows that the offer to settle, including attorneys' fees and punitive damages was set at $63,000.00.  Gowen neither accepted nor rejected but went silent, which under the statute is a rejection.  Two months later Greenberg Traurig filed a Motion for Summary Judgment.  The Motion for Summary Judgment on all the substantive claims was granted and some months thereafter Greenberg Traurig filed a Motion for its attorney’s fees under 9-11-68.
    Gowen's initial claim made out a claim for $35 million and by the time Greenberg Traurig had succeed in obtaining a dismissal of all of the claims and asserting its request for fees, it was entitled to fees in excess of $300,000.00.  Due to various withdrawals of certain claims and voluntary reductions on behalf of Greenberg Traurig's part, the Court granted fees in the amount of $281,000.00 and Court costs of $35,000.00.
    The case is instructive for a number of reasons.
    The Court sided with Greenberg Traurig that given the potential exposure, $35 million, plaintiff was not well grounded in its assertion that plaintiff used two lawyers and a few paralegals while Greenberg Traurig employed eight lawyers and five support staff.  The Court found that Greenberg Traurig had a reasonable explanation for each attorney and each paralegal and therefore granted fees for them all at a slightly reduced rate.
    On a practice level, the case also provides a clear exhibit that was used by Greenberg Traurig, prepared by Rogers & Hardin, from which a fairly clear OCGA § 9-11-68 demand letter may be crafted.  Exhibit A.
    Additionally, the Motion prepared by Rogers & Hardin on behalf of Greenberg Traurig is a fairly good form for use in federal court (and could be easily modified for Superior Court).  It is attached hereto as Exhibit B.
    Gowen was affirmed in Gowen Oil Company vs. Greenberg Traurig, et al., United States Court of Appeals for the 11th Cir. (December 13, 2011) (Unpublished).
B. Potential Bad Press Associated With Seeking Attorney's Fees: Hall v. 84 Lumber
    In an Order in Charles D. Hall, Plaintiff v. 84 Company; Darren Richardson; Keith Conner; Robert Venal; Robert C. Venal, Inc., Defendants, United States District Court for the Southern District of Georgia Savannah Division, Judge William T. Moore, (March 28, 2012), Judge Moore “encouraged” the Defendants not to seek fees.  Judge Moore, while finding the OCGA § 9-11-68 Motion was hyper technically not ripe, cautioned the Defendants concerning whether they should seek attorneys' fees of in excess of $250,000.00 from the Plaintiff who lost his case. 
      The Court, in Hall v. 84 Lumber, supra, stated that:
Mr. Hall is not some deep pocket corporate entity.  Rather, he was simply an unfortunate delivery driver who suffered an injury when one of defendant's employees ran over his foot with a forklift.  Mr. Hall brought a legitimate claim before this Court:  whether defendants qualified as statutory employers under Georgia law and, as a result, were shielded from liability for his injury.   In this Court's opinion, defendants need to ask themselves whether the mere fact that Mr. Hall's counsel failed to convince this Court that his client was meritorious should result in saddling an injured blue collar worker with not only the fallout from his injury but also $271,000.00 of fees and expenses.  This Court wonders whether this is truly a position that a customer-service oriented business like 84 Lumbar should take.  Perhaps the limited and general partners of defendant 84 Lumbar should ask themselves the same question." 
Hall v. 84 Lumber, supra at 5.  (Order of March 28, 2012).
    A review of the docket sheet concerning Southern District Case No.  4:09-CV-00057-WTM-GRS shows that 84 Lumber dismissed the motion with prejudice and did not refile it.
      C. Small Jury Verdict for Plaintiff Equals Judgment for the Defendant
      Abraham v. Hannah, 306 Ga.App. 735, 702 S.E.2d 904 (2010), is a case that has a fairly shocking outcome under OCGA § 9-11-68. While Abraham was reversed on appeal because the plaintiff did not have notice of the OCGA § 9-11-68 hearing, it shows how a plaintiff may win and then lose under OCGA § 9-11-68.
      Abraham (Plaintiff) recovered $850.00 in a jury verdict (this author admits that it's in a tiny sum); however, prior to the jury verdict Hannah (defendant) had offered $2,500.00 to Abraham to settle the case. After the jury verdict in Abraham's favor of $850.00, the trial Court held a hearing and granted attorney's fees, pursuant to OCGA § 9-11-68, to Hannah in the amount of $2,425.00. Once the jury verdict of $850.00 was subtracted from that amount the defendant (though the defendant lost at trial) had a judgment in its favor against the successful plaintiff, Abraham, of $1,575.00.
      While this case was reversed for lack of notice, it displays in stark contrast the painful reality of an unaccepted offer in the face of a small jury verdict.
      D. Punitive Damages Count Toward the 75% - 125%
      In Wildcat Cliffs Builders, LLC v. Hagwood, 229 Ga. App. 244, 663 S.E.2d 818 (2008), (This case was decided under prior law), plaintiff in the underlying action, Hagwood, recovered a $90,000.00 compensatory award, $100,000.00 punitive damage award and $14,688.56 in OCGA § 9-11-68 attorney’s fees.
      The facts most favorable to Hagwood showed that Wild Cliffs Builders knowingly encroached upon Hagwood’s property, built a retaining wall, refused to remove it and then offered Hagwood only $10,000.00 in an effort to purchase an easement and a complete release of liability. A jury awarded to Hagwood the amounts stated above. Though decided under prior law, an interesting nuance out of the Wildwood Builders case is that defendant/appellant’s took the position on appeal that punitive damages should not be counted in calculating the OCGA § 9-11-68 award. Although it is unclear whether the Georgia Court of Appeals simply said that they would or would not consider the inclusion of punitive damages, they held that it was “moot” once they affirmed the punitive damage award. Wildcat Cliffs, at 822.
      In sum, the evidence showed that Wildcat had no interest in remedying or lessening the run-off problem or compensating Hagwood for the property damage he had sustained. Rather, it was amenable only to paying Hagwood for an easement and a release from all liability arising from the retaining walls it had constructed on Hagwood's property. The foregoing evidence was sufficient to authorize the jury's conclusion that, after it learned of its trespass onto Hagwood's property and its creation of a continuing nuisance thereon, Wildcat acted with a conscious indifference to the consequences of its conduct.
      Hagwood requested and received attorney fees and expenses pursuant to OCGA § 9-11-68(b)(2). Prior to trial, Hagwood offered to settle the case for $110,000. After the jury awarded him a total of $190,000 in damages, he was, therefore, statutorily entitled to recover his attorney fees and expenses.
      On appeal, Wildcat argued that this award must be overturned, because, in the absence of the punitive damages award, Hagwood did not recover greater than 125% percent of his Offer of Settlement. The Court of Appeals held that since it sustained the award of punitive damages, that argument is moot.
      It affirmed the entry of judgment against Wildcat in favor of Hagwood, including the award of $100,000 in punitive damages and $14,688.56 in attorney fees and expenses.
      E. A Dismissal Without Prejudice Did Not Trigger the Award
      In McKesson Corporation, et al. v. Green, et al., 286 Ga. App. 110, 648 S.E.2d 457 (2007), (decided under prior law), the Court of Appeals declined to award OCGA § 9-11-68 attorney’s fees where a demand had been made but plaintiff took a dismissal without prejudice (OCGA § 9-11-41) prior to proceeding to trial. While the McKesson case turned on complex issues associated with stockholdings, RICO allegations concerning stockholdings and plaintiff’s apparent lack of an expert immediately prior to trial, the OCGA § 9 11-68 issue was resolved by the Court of Appeals in that a voluntary dismissal does not constitute the type of judgment or final judgment which will invoke liability under the OCGA § 9-11-68 statute. The Court of Appeals wrote in that regard as follows:
McKesson contends that the trial Court erred in denying its motion for attorney’s fees under OCGA § 9-11-68(b)(1). That code section provides that a defendant whose settlement offer is rejected shall recover attorney’s fees and expenses of litigation “if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such Offer of Settlement.” The trial Court in this case entered no final judgment within the meaning of the statute, and therefore did not err in denying this motion. A right to dismiss voluntarily without prejudice would be meaningless if doing so would trigger the payment of defendant’s attorney’s fees. Without explicit language establishing that the legislature intended to excise a plaintiff’s right to dismiss in this manner, this Court will not engraft such an intention into the statute.
McKesson, at 462.
      F.  Courts Struggle With “Offers Not Made in Good Faith”
    The trial courts and Georgia Court of Appeals have struggled with the defining what constitutes and Offer not made in “good faith.”  It is, somewhat, like trying to put a subjective concept into an objective box.   However, given that the General Assembly has foisted O.C.G.A. § 9-11-68 upon us, we must do it.  The most prominent case on point is, Great West Cas. Co. v. Bloomfield, 313 Ga.App. 180, 721 S.E.2d 173 (2011). 
    A masterful overview of Bloomfield, at the trial level is found at: Clay, Jr., Charles "Chuck" and Paupeck, Michael, Recent Decision Highlights Additional Issues with Georgia's Tort Reform Act, Weinburg, Wheeler, Hudgins, Gunn & Dial, December 29, 2011.  I reproduce it below (without indentions).
      “On December 1, 2011 the Georgia Court of Appeals issued an opinion that complicates efforts by defendants and their insurers to obtain fees and costs, particularly in large damages cases.  See, Bloomfield, supra. This appeal was taken from a trial court’s denial of a motion for fees and costs pursuant to O.C.G.A. § 9-11-68, Georgia’s offer of settlement statute. This statute is quite specific regarding the procedure and essential terms of the written offer. If complied with, the statute states that a defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred from the date an offer was rejected through entry of judgment, if the final judgment is one of no liability or less than 75 percent of such offer of settlement. That is, unless the trial judge determines that the offer was not made in “good faith.”
    In Bloomfield, Judge Patsy Porter of the Fulton County State Court ruled that the Great West Defendants’ $25,000.00 offer of settlement did not constitute a “good faith” offer in a wrongful death trucking case, and, thus, she disallowed an award of $69,000.00 in fees and costs to which these defendants were otherwise entitled under the statute. The trial judge’s ruling and the ultimate decision on appeal were somewhat surprising because these defendants won at trial and their written offer, in all technical aspects, complied with the requisites of O.C.G.A. § 9-11-68. Moreover, in June of 2011, the Court of Appeals held that a $750 offer was not made in bad faith in a slander case and, therefore, upheld a $84,000.00  award of fees and expenses. The Bloomfield decision makes clear that winning at trial does not guarantee a recovery of attorneys’ fees and costs.     Unfortunately, it provides limited explanation as to exactly why the particular offer was deficient and creates ambiguous precedent.
    The underlying case in Bloomfield involved two separate collisions. In the first collision, the tractor-trailer driver insured by Great West struck another vehicle while changing lanes, causing an accident. Subsequently, the vehicle in which Mrs. Bloomfield was a passenger slowed while approaching the original wreck and was struck from behind by a second tractor-trailer, the driver of which admitted fault and was ultimately assessed 100% liability. A Fulton County jury awarded $10.4M compensatory damages and $44M in punitive damages (which were capped at $250,000.00 by statute) against the defendants associated with the second tractor-trailer.
    The specific issue on appeal was whether the trial court had abused its discretion pursuant to subsection (d)(2) of O.C.G.A. § 9-11-68 in disallowing the fees and costs to which the Great West Defendants were otherwise entitled. Subsection (d)(2) reads, “If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination.” (emphasis added). The trial court initially denied the motion for fees without providing the statutorily required basis, so the Court of Appeals first vacated that order and remanded the case back with instructions to explain the basis for finding bad faith. See Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010); cf Cohen v. Alfred and Adele Academy, Inc., 310 Ga. App. 761, 714 S.E.2d 350 (2011) (trial courts are not required to make written findings of fact or conclusions of law should they find that an offer was made in good faith). On remand, the Bloomfield trial court supported its denial by stating: 1) $25,000.00 was not a reasonable offer or realistic assessment of liability in a wrongful death case; 2) the subject truck driver paid a traffic ticket fine for improper lane change; 3) defense counsel made the offer without having even deposed a police officer on the scene who later testified at trial; and 4) that the Great West Defendants eventually made a $1M offer during trial, which Plaintiff rejected.
    The case then went to the Court of Appeals a second time. Initially, it was assigned to a three-judge panel which included Judges Anne Elizabeth Barnes, Harris Adams and Keith Blackwell. They split 2-1 in favor of reversing the trial court on the grounds that it had failed to justify the finding of bad faith. Because there was a split, an expanded seven-judge panel was employed to resolve the split. Judge Barnes apparently convinced the additional panel members to side with her, and in a 5-2 decision focusing heavily upon the abuse of discretion standard of review, the majority upheld the trial court’s denial of fees and costs.
      While upholding the trial court’s ruling, the Court of Appeals’ majority opinion offered almost no analysis of the trial court’s four-part rationale for finding a lack of good faith. The dissent raised frustration with that approach and then proceeded to delve into a more detailed analysis in which they challenged each of Judge Porter’s four reasons. Instead, the majority broadly stated that the trial court’s determination of the reasonableness of an offer “is a factual determination, based on the trial court’s assessment of the case, the parties, the lawyers, and all of the other factors that go into such determination, which the trial court has gathered during of the case.” They did not address: 1) whether the $25,000 offer was per se unreasonable in a wrongful death case; 2) whether the fact that the subject truck driver paid a traffic ticket fine for improper lane change properly supported a finding of bad faith; or 3) whether defense counsel’s failure to depose a police officer on the scene who later testified at trial was indicative of bad faith. The Court of Appeals did analyze the trial court’s fourth factor and held that the trial court properly considered the fact that Great West made a $1M settlement offer during trial.”
      G. OCGA § 9-11-68 is Constitutional
      Smith et al. v. Baptiste, et al., 287 Ga. 23, 694 S.E.2d 83 (2010), stands for the proposition that the Supreme Court of Georgia found OCGA § 9-11-68 to be constitutional.
      The Baptistes filed a complaint for damages against Chuck Smith and the radio station WQXI 790 AM after WQXI broadcast defamatory statements about the Baptistes. While the case was pending and pursuant to OCGA § 9-11-68(a), Smith and WQXI offered to settle the case for $5,000.00. The Baptistes did not respond to the offer which was deemed a rejection under OCGA § 9-11-68(c). The Court granted summary judgment.
      Smith and WQXI moved for attorney’s fees pursuant to OCGA § 9-11-68(b)(1); however, after a hearing, the trial Court denied Smith and WQXI’s motion for attorney’s fees and found that the scheme enacted under OCGA § 9-11-68 was unconstitutional and violated various provisions of the Georgia constitution.
      In the Baptiste, supra, Mr. Justice Carley sketched out the background of OCGA § 9-11-68. He wrote that OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005. The scheme enacted under OCGA § 9-11-68(a) specifies that in a tort claim either party may serve on the other party a written demand or offer to settle that tort claim. If the settlement demand or offer is rejected, that party may be entitled to recover attorney’s fees pursuant to OCGA § 9-11-68(b).
      The Georgia Supreme Court overturned the trial Court on the finding that OCGA § 9-11-68 violated the “uniformity” clause of the Georgia constitution. The trial Court apparently found that OCGA § 9-11-68 was non-uniform in that it applied only to tort cases and not to civil cases including contract claims or other claims. That is, because it did not apply to the entire class of civil cases but only to tort claims inside civil cases it was therefore (in the trial Court’s opinion) unconstitutional.
      The Georgia Supreme Court wrote that “our state Constitution only requires a law to have uniform operation across all laws.” Baptiste, at 88.
      Because the Supreme Court found that OCGA § 9-11-68 applied uniformly across the state to all similarly situated tort claims, it was a general law and was therefore uniform across those types of claims. It was therefore constitutional. Id.
      OCGA § 9-11-68 is Substantive Law in Federal Court.
      Wheatley v. Moe's Southwest Grill, LLC, et al. 580 F. Supp. 2d 1324 (N.D. Ga. 2008), sheds light on some of the difficulties of the enforcement of OCGA § 9-11-68 (the Georgia Offer of Settlement) in Federal Court. While many parts of this long and messy case go beyond a simple discussion of OCGA § 9-11-68, it turned on an offer of 50,000 shares of stock in Moe's and related corporations [Mama Fu's Noodle House, Inc. and Raving Brands Holding, Inc.] when Plaintiff, Wheatley, was promoted from employee to company vice president with an equity share. When Wheatley resigned from the corporation, she sought the 50,000 shares by written certificate. Because of the lack of writing and ambiguity, litigation arose concerning whether the shares had to be issued.
      An award of OCGA § 9-11-68 attorney's fees may not be had for the attorney's fees incurred from an appeal from the District Court through the 11th Circuit and on remittitur back to the District Court. Attorneys for Moe's Southwest moved for $49,000.00 of attorney's fees incurred while the case was appealed from the District Court through the 11th Circuit and back on remand to District Court. The United States District Court for the Northern District of Georgia, gave a short shrift to the request for attorney's fees on appeal in federal Court and wrote: "The motion that seeks attorney's fees and expenses of litigation incurred on appeal is meritless. The statute expressly limits the award of attorney's fees and expenses to those incurred from the date of the rejection of the Offer of Settlement to the date of entry of judgment … " 580 F. Supp. 2d 1326.
      It is unclear, from Wheatley and similar cases, how practitioners are to deal with cases that are a combination of contract claims, tort claims and hybrid claims. In Wheatley, the Plaintiffs contended they were suing on contract for the 50,000 shares. The defendants contended that it was a meritless tort suit, suit on breach of fiduciary duties, conversion and other counts. The federal Court struggled with the question concerning whether an OCGA § 9-11-68 Offer of Settlement could properly be made to a case that had some contract claims buried in amongst tort claims. 580 F. Supp. 2d 1325 1327.
      While the trial court did not resolve this area of the law, he found that the statute applied to any suit that involved a "tort claim" in the action. Thus, perhaps reading between the lines, one can make an Offer of Settlement if any portion of Plaintiff's complaint includes a well-defined "tort" claim. 580 F. Supp. 2d 1327. Perhaps the most important determination out of Wheatley, supra, is that the Court specifically and unequivocally held that OCGA § 9-11-68 offers apply as substantive law in federal Court. While the Plaintiff argued that the Georgia statute was merely procedural and could not be applied in federal Court, the Court found otherwise.   The Court cited, Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188 (1938) and its progeny, the Court found that it could (and perhaps was obliged to) apply state substantive law on this particular issue. Id.
      The Wheatley case goes on to show that it certified three (3) questions to the Georgia Supreme Court. Research reveals that while the record was transferred to the Georgia Supreme Court and the issues were placed before the Supreme Court, the parties settled their claims and the Supreme Court allowed the case to return to the District Court on remittitur without answering the certified questions posed in Wheatley. See, the Order of the Supreme Court of Georgia dated April 28, 2009 and Wheatley, returning the file to the United States District Court for the Northern District of Georgia without an answer. Document 173 in United States District Court Northern District of Georgia Case. No. 1:05 CV 02174 TCB.
      The Georgia Offer of Settlement statute OCGA § 9-11-68 is a powerful tool to shift an opponent off the status quo and toward a resolution of the case. This paper has shown that the drafter of the Offer must carefully follow the statute. A plaintiff must recover more than 75% percent of a rejected offer or bear the defendant's fees and a defendant must be confident that a plaintiff can recover no more than 125% percent of a rejected offer or risk paying plaintiff’s counsel’s fees. This paper has reviewed the statute’s potential for legal malpractice if an Offer is not made or not employed correctly. It has reviewed the recent finding of constitutionality of the statute and looked at additional recent cases.
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
Phone: 404-633-4100
Fax: 404-633-0068

Note:  The 2012 Version of this paper extensively reviewed OCGA § 9-11-68 as a statutory scheme of “Betting the Spread,” in game theory.  That paper also reviewed academic statistical reviews of whether Offers of Settlement statutes (throughout the United States) do, in fact, reduce litigation?
Prior versions of this Paper, 2011 to 2014, reviewed the application of Fed.R.Civ.P. 68 to case.  Those prior versions are available from ICLEGA, Athens, GA

In 1989 the Georgia General Assembly, in its wisdom, gave us OCGA §§ 51-7-80 through 51-7-85. In that abusive litigation/malicious prosecution scheme we, as practitioners, had to stay within the confines of two paragraphs of OCGA § 51-7-84 to write a cogent and enforceable notice by certified mail to be able to enforce a claim after the end of the suit. The General Assembly, in its wisdom, has now given us twenty-three (23) paragraphs under OCGA § 9-11-68 to make an appropriate Offer of Settlement during a case.
What if the Complaint, is part in tort and part in contract? May one submit an OCGA § 9-11-68 Offer of Settlement for the tort portions of the action? The United States District Court, Northern District of Georgia struggled with this issue in Wheatley v. Moe’s Southwest Grill, LLC, et al., 580 Fed. Supp. 2d 1324 (2008). Unfortunately, there is no clear answer from that case. The Federal Court certified the question to the Georgia Supreme Court; however, the case then settled without an answer. Wheatly, supra, contains and interesting “chart,” delineating “tort,” causes of action from “contract,” causes of action. 586 Supp. 2d 1324, 1326. This author’s personal opinion, though is that this expands litigation and makes the offers unwieldy and unfair, but “yes,” one can make Offers of Settlement to the tort claims (inside) a larger complaint or petition.
There are substantial nuances in the concerning the making of an Offer of Settlement with regard to a counter-offer and nuances with regard the effect of the withdrawal of an Offer on the collection of on attorney’s fees. These are beyond the scope of this article.

Exhibits A & B are located in the Scribd download

Monday, July 4, 2016

Probate Estates Never Close. Or, Do They? Does The Five Year Rule Close Probate Estates Sub Silentio?

Probate Estates Never Close. Or, Do They?  Does The Five Year Rule Close Probate Estates Sub Silentio?  

Hugh Wood, Esq., Atlanta, GA 

Does the Five Year Automatic Dismissal Rule apply to the closure of estates in Georgia.  OCGA § 9-2-60(b)? [1]  If your client is being sued by an estate the executor or an administrator of the estate you might want to check the probate court docket to see if any order has been entered in the last five (5) years.  Granted the vast majority of estate claims are received during the time that an estate is in active litigation.  However, this author has been involved in a number of claims where the action brought by an administrator or executor was pursued well beyond five (5) years beyond any activity in the estate. 

There appears to be no definitive answer to this question in Georgia. 

The pertinent part of the Five Year Rule 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.” [1]

It is clear that a probate filing is a “proceeding.”  However, what is unclear is whether the lack of activity for more than five (5) years silently closes estates.  While anecdotal, this author’s guess is that if you polled “estate” experts they would dismiss this defense out of hand.  But should they?

There is at least one Georgia case where this issue was raised as a serious defense.  The settlement of that case on other grounds caused this defense to not be reviewed.  However, it was considered a serious defense within the context of the litigation. [2]

            Georgia probate, at least in litigation, substantially follows the Georgia Superior Court Rules.   Georgia does have its own Uniform Probate Court Rules. [3]  OCGA § 9-2-60 is a specific Georgia code section and only the Georgia courts can definitively state how it applies to litigation.  However, California has a five year rule and many decades ago California’s five year rule was applied to bar litigation by an Estate.  In the context of caveat litigation, the California Court of Appeals dismissed the caveat based on California’s application of its own five (5) year rule.  In Re Morrison's Estate,125 Cal.App. 504, 14 P.2d 102 (1932).  [4]

Georgia has 72 official probate forms.  Many Georgia Probate Forms allow for the opening of probate estates, but strangely, none provide for the closure of estates.  [5].  So how does one close and estate?  The best legal opinions in the Bar, is that you don’t close estates.  In fairness, much of this article may not apply to estates that are worth more than 5.4 million dollars or, like the Estate of Elvis Aaron Presley, Memphis, Tennessee, have ongoing year to year income.   This analysis does not apply to active estates.

 The real “closure,” if any, is based on when the largest threatened creditor, the IRS, officially releases the estate with the Estate Tax Closing Letter.  [6]   In the Probate system, the filing of Form 33, if granted, allows for the discharge of the Personal Representative [Executor or Administrator] and in most probate courts leads to the administrative closure by the clerks (but not always).  [5] [at Form 33].   The instructions for discharge, which may be relevant if you choose to discharge your personal representative, are listed below beside Form 33.  Id.

The Georgia Court of Appeals allowed an accounting petition to go forward even though it was well beyond the ten (10) year applicable statute of limitations claim for petitioning for an accounting.  [7]  In re Estate of John Malcolm Wade, 331 Ga.App. 535, 771 S.E.2d 214 (Ga.App. 2015).  In fact, it was the “Wade,” case that caused this author to ponder whether there were other defenses available to the Wade Executor to block the Petition some 25 years after it could have been filed.   The alleged “final” distribution was filed while Reagan was President in 1988, and yet the Georgia Court of Appeals allowed the petition for an accounting to go forward in the 2nd term of President Obama’s administration.    That is long stretch of time, in this humble author’s opinion. 

            The Court of Appeals has applied the five (5) year rule, despite its unintended harsh consequences.  [8]  Paul et al. v.  Smith, Gambrell & Russell, 323 Ga.App. 447, 746 S.E.2d 739 (2013), the Georgia Court of Appeals allowed the application of the five year rule to bar further trial court litigation – even though the five years ran while the case was on appeal.   Recall that a filed Notice of Appeal acts as supersedeas and no action may be taken in the trial court while a case is on appeal.  The Court found that five (5) years had run in the trial court, even though almost two years of the five years was due to appeal supersedeas.   How were the litigants to file anything in the trial court to stop the draconian action of the five (5) year cutoff?  That was not answered in the opinion nor is it answered in the statute.

This author believes that the five (5) year rule is not nuanced, but rather is a blunt instrument.  It is used to terminate old or stale litigation.  Whether correct policy or not, it just is. 

            The five (5) year rule may stop zombie debt collection (and prosecution).  Granted that zombie debt is not common in the context of estate litigation, but this author has seen it.   Aged chain store debt and aged credit card debt sold to zombie collectors may fall to this defense if they are pursued more than five (5) years after any estate action.

So what is the conclusion of this matter?  If your client is being pursued on a debt that seems significantly aged and closed out of an estate there is no downside not to raise the Five Year Rule.  If you are preparing to bring an action on behalf of an estate, its executor or administrator, you might want to check the status of the probate estate to see that some activity has occurred within the last five (5) years, if your claim is aged.

Happy litigating.

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
Phone: 404-633-4100
Fax: 404-633-0068

& & &



OCGA § 9-2-60. Dismissal for want of prosecution; costs; recommencement within six months
(a) For the purposes of this Code section, an order of continuance will be deemed an order and the word "proceedings" shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.
(b) 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.
(c) When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.
HISTORY: Ga. L. 1953, Nov.-Dec. Sess., p. 342, 1, 2; Ga. L. 1967, p. 557, 1; Ga. L. 1984, p. 597, 1.


It is the Probate case that was associated with the following case; however, the citation is not available as of the date of this writing (mostly because the file is not available in an online searchable format).   The Probate case filed in 2003 in the Probate Court of Fulton County is the underlying probate case associated with the RICO case that is shown by citation as follows:  Rosario Diego Jimenez, Plaintiff vs. Mari Luisa de Gregoriao, et al., USDC for NDGa – ATL Div., Case No. 1:03-cv-1638-BBM.  Removed from Superior Court in a companion filing to In Re: The Estate of Natividad Jimenez del Ray, Deceased, Probate Court of Fulton County, State of Georgia, Estate No. 185213.  A probate matter in the county of Spain was in play with a companion probate filing in the United States.   In the Fulton County Probate case a defense of the Five Year Rule was raised, but not reviewed.  Unfortunately, without access to the litigants files, no copy is available for attachment to this article.  Interview with probate litigation attorney, Walter Hamberg, III, June 30, 2016.


Uniform Probate Court Rules


125 Cal.App. 504, 14 P.2d 102 (1932)
District Court of Appeal, First District, Division 1, California.
In Re Morrison's Estate.
Goldborten Et Al.v. Scott.
Gryzolet Et Al. v. Scott.
Civ. 8322.
Aug. 26, 1932.Rehearing Denied Sept. 24, 1932.Hearing Denied by Supreme Court Oct. 24, 1932.
Appeals from Superior Court, Alameda County; Lincoln S. Church, Judge.
Petitions by Zysla Brucha Goldborten and another and by Chaja Malta Gryzolet and others against Maud Scott, also known as Marion Scott, to revoke the probate of the will of Leon Morrison, deceased. From orders of dismissal, contestants appeal.
Orders reversed.  [Copyright material removed]
Attorneys and Law Firms
**103 *505 Livingston & Livingston, of San Francisco, for appellants.
William J. Cullinan and Stanley Burke, both of San Francisco, for respondent.
JOHNSON, Justice pro tem.
In this proceeding there are consolidated appeals from orders dismissing two petitions to revoke probate of the will of Leon Morrison, deceased, one filed by persons describing themselves as sisters of the deceased, the other by persons declaring themselves to be nieces. The orders of dismissal were based on section 583 of the Code of Civil Procedure, under which, in the absence of a written stipulation for an extension of time, it is made the duty of the court to dismiss an action not brought to trial within five years after the filing of the answer.
Leon Morrison died on June 20, 1921; and, after a contest by the state of California, an instrument dated January 12, 1921, purporting to be the will of the deceased, was admitted to probate on August 14, 1923. An appeal from the order was taken by the state, and on February 17, 1926, the remittitur from the Supreme Court was filed showing affirmance of the order. Estate of Morrison, 198 Cal. 1, 242 P. 939.
Meanwhile a petition by the alleged sisters of the deceased to revoke probate of the will was filed on October 23, 1923, and another petition by the alleged nieces on July 18, 1924. Answers to these petitions were filed respectively on March 16 and March 23, 1926, by the respondent, Maud Scott, as the proponent of the will. A date was then set for the trial of the contests; but, as the time drew near, the contestants concluded that the evidence available to them would not suffice to overcome testimony in favor of the will given at the time of its admission by two witnesses, John W. McKenzie and Barney Hoffman. Accordingly a settlement was *506 arranged whereby the contestants received $2,000, and thereupon, on June 16, 1926, dismissed their contests. A minute order to like effect was made by the court on the same day.
Thereafter, on July 8, 1926, McKenzie and Hoffman made a confession to the district attorney of Alameda county that the testimony given by them in support of the will had been false, and they stated that they had been procured to commit perjury by said Maud Scott and others acting in her behalf. These men, on being brought to trial on a charge of perjury, pleaded guilty, and were sentenced to serve a term in the penitentiary.
Upon learning of these disclosures, the contestants on August 13, 1926, filed notice of motion to vacate the dismissals of their contests, and by order signed December 2, 1926, in fulfillment of a minute order made November 18, 1926, that motion was granted with authorization to the contestants to proceed in due course with the prosecution of their contests. A period of six months, lacking fourteen days, thus intervened between the dismissal of the contests on June 16 and their reinstatement on December 2, 1926. An appeal from the order of reinstatement was undertaken by Miss Scott, but was dismissed on July 1, 1929, on the ground that the order was not appealable. While that appeal was pending, efforts were made by the contestants to procure depositions of McKenzie and Hoffman and also of witnesses in Chicago, but delays ensued, due largely to continuances requested by attorneys for Miss Scott.
On motion of the contestants, the contests were finally set for trial for May 26, 1931; but on May 1 Miss Scott filed notice of motion to dismiss both contests. By reason of such motions, the trial of the contests was postponed by the court to August 5, 1931; and meanwhile, on July 23, the court made its orders granting the motions on the sole ground that the contests had not been brought to trial within five years after the answers were filed. The time which elapsed between the earlier answer of Miss Scott and the date of the dismissals by the court was five years, four months, and seven days.
From the orders of dismissal, the contestants prosecute these appeals.
In addition to the contests filed by the contestants as already mentioned, a petition to revoke probate of the will *507 of said deceased was filed anew by the same contestants on January 7, 1927. Certain questions affecting the status of that petition are dealt with in the companion proceeding in prohibition of Maud Scott v. Superior Court (Cal. App.) 14 P.(2d) 99, in which our opinion is this day filed.
Upon the present appeal, there are two questions presented for consideration, one as to the applicability of section 583 of the Code of Civil Procedure to a contest to revoke probate of a will, the other as to the disallowance of credit in the computation of time for the interval of approximately six months during which the contests were suspended by virtue **104 of the dismissals effected by concurrence of the parties. If this period of time is deductible, then the contests cannot be treated as having been at issue for five years before the dismissals in question.
1 While section 583 must necessarily have a limited application to probate proceedings in general, we are of the opinion that it may properly be extended to include a contest to revoke probate of a will.
Such a contest is an adversary proceeding, and in its essence is an action for recovery of property claimed to be unlawfully taken, or about to be taken, from the ownership of the contestant. He comes into court in the character of a possessor of a chose in action, founded on the violation of a vested property right by means of an instrument not truly testamentary; and, subject to certain qualifications, he is entitled to have the merits of his cause determined by a jury. Estate of Baker, 170 Cal. 578, 586–588, 150 P. 989; Estate of Clark, 94 Cal. App. 453, 460–461, 271 P. 542. The trial of a will contest has the characteristics of a trial of an ordinary civil action involving title to property; and, by section 1713 of the Code of Civil Procedure in force at the time of the orders of dismissal, it was prescribed that, except as otherwise specially provided, proceedings in probate should be governed by the rules of practice in civil actions.
In People v. Central Pac. R. R. Co., 83 Cal. 393, 404, 23 P. 303, 307, the court, quoting from a law lexicon, defined practice as “that which regulates the formal steps in an action or other judicial proceeding. It therefore deals with writs, summonses, pleadings, affidavits, notices, motions, *508 petitions, orders, trials, judgments, appeals, costs, and executions.”
Rules of practice are designed to establish the manner of bringing parties into court, and, when they are there, prescribe the course to be followed by the parties and the court throughout the various stages of the litigation, in hearing, dealing with, and disposing of the matters in dispute. 49 C. J. 1312. The purpose is to harmonize and facilitate the conduct of litigation; and, since such rules deal with all phases of a case from its inception to final judgment, the time within which an action or proceeding shall either be brought to trial, or dismissed as burdensome to an adversary and to the court as well, is a proper subject for an administrative formula in aid of a definite and uniform mode of procedure.
It is the policy of the law to expedite the administration of estates; and it would seem that the reasons which influenced the adoption of section 583 justify an interpretation of the word “action” sufficiently broad to include a proceeding such as the contest of a will.
The appellants rely with much confidence, however, on the ruling of the court in Estate of Simmons, 168 Cal. 390, 395, 143 P. 697, whereby section 581a, Code of Civil Procedure, authorizing dismissal for failure to have summons issued in an action within one year, was held to be inapplicable to a will contest, wherein a year had been allowed to pass without issuance of a citation. The rationale of that decision is that, as section 1328, Code of Civil Procedure, then in force, prescribed the period of one year for issuance of a citation, without annexing any penalty for the omission, the court was free to exercise its discretion in relieving the contestant from default and authorizing the issuance of a citation, notwithstanding the lapse of time. In other words, the court took the view that there was a probate rule which forbade application of the rule governing similar defaults in civil actions.
Appellants invoke also the decision in Estate of Joseph, 118 Cal. 660, 50 P. 768, rendered in 1897, wherein insistence was laid upon the distinction between an action and a special proceeding; and, by a strict interpretation of the word “action,” the right to demand an undertaking from a nonresident plaintiff as security for costs was limited to *509 the defendant in a civil action only. By an amendment made in 1903, however, the benefit of the section was made available in special proceedings also.
While no sure guide to the extension of the rules of civil practice to proceedings in probate is furnished by the numerous decisions in this state on various points of probate procedure, it may at any rate be said with certainty that the use of the word “action” by itself in a Code section is not controlling. This is illustrated in Estate of Knauft, 59 Cal. App. 536, 211 P. 29, where section 354, Code of Civil Procedure, was made to toll the statute of limitations in behalf of an alien enemy who had instituted a will contest after expiration of the ordinary statutory period; and in the course of its opinion, in reference to a dismissal without prejudice, the court declared that it saw no reason why section 581, Code of Civil Procedure, subdivision 4, was not applicable to a proceeding in probate. A portion of that opinion is quoted with approval in Estate of Cook, 205 Cal. 581, 588, 271 P. 1083, and is followed by the statement of the Supreme Court that the pronouncement approved is authority that the rule governing dismissal of actions generally under section 581 is applicable to probate proceedings.
Since the orders under review were made, section 1713 of the Code of Civil Procedure has been reframed in section 1233 of the Probate Code; and, with a view to clarification, that section now provides that the rules of civil practice shall be applicable to proceedings under the Probate Code “with regard to trials, new trials, appeals, records on appeal, **105 and all other matters of procedure.” In so far as trials are concerned, we do not interpret this section as enlarging the scope of former section 1713, Code of Civil Procedure; and to our minds section 583, depriving the court of jurisdiction to try an action when there has been a delay of five years, is, and always has been, as much a general rule, affecting actions and special proceedings alike, as a rule declaring when an action or special proceeding is at issue and ready for trial.
2 We are now brought to the second question, the elimination of the period of suspension intervening between the conventional dismissals on June 16, 1926, and the reinstatement of the contests by the court on December 2, 1926.
*510 The respondent insists that the suspension had no effect whatever so far as section 583 is concerned, and relies on a statement of the court in Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 338, 219 P. 1006, that nothing short of a written stipulation expressly extending the time of trial beyond the five–year period, or expressly waiving the right to a dismissal, will suffice to toll the running of the statutory time. The court was there reiterating the general rule in its relation to a stipulation in that particular case which was found insufficient to meet the requirements of the law. Attention was not then being centered upon a situation which temporarily deprived the trial court of jurisdiction to proceed with the trial of the action. If such a situation had been in the mind of the court, reference would doubtless have been made to Kinard v. Jordan, 175 Cal. 13, 164 P. 894, 895, where it was held that, while an appeal was pending, the case was removed from the jurisdiction of the trial court, and necessarily exempt from the operation of section 583. Again, in Allyne v. Superior Court, 200 Cal. 661, 664, 254 P. 564, in dealing with the application of the section to the prosecution of an action after entry of an order granting a new trial, the court declared that the plain and obvious purpose of the section was to regulate the matter of compulsory dismissals only under one set of circumstances, namely, where the action had not been brought to trial within five years after filing of the answer, and that, so far as a retrial was concerned, the section had no relevancy.
In Kruly v. Superior Court (Cal. App.) 10 P.(2d) 178, several years intervened between the resting of the case after introduction of certain evidence and the resetting for trial. The trial court having denied a motion to dismiss under section 583, a writ of mandamus was applied for, but was denied upon the ground that suspension of proceedings after commencement of the trial did not set the statute in motion.
Situations are thus recognized which repel a strained construction of the statute.
No logical distinction can be made between a temporary suspension of proceedings in the trial court, consequent upon a dismissal induced by fraud or mistake, and a suspension of the power of the trial court to proceed by reason of the pendency of an appeal. In either case, the action or proceeding *511 is withdrawn from the cognizance of the court of first instance during the period of suspension. And as in Kinard v. Jordan, supra, the case was taken out of the operation of section 583 while an appeal was pending, so in like manner the period of suspension here should be excluded in computing the quinquennium at the end of which the jurisdiction of the court expires by operation of law. In Kinard v. Jordan, begun in March, 1906, there was a motion to dismiss the action, made in September, 1914, and based on that portion of section 583, which empowers the court in its discretion to dismiss an action, if not brought to trial within two years after filing of the answer. There had previously been a judgment for the plaintiff on the merits, but on appeal that judgment had been reversed in March, 1909. 10 Cal. App. 219, 101 P. 696. Thereupon certain proceedings were had which resulted in another judgment in November, 1911, and another reversal on appeal therefrom in March, 1914, 167 Cal. 333, 139 P. 797. Then came the motion to dismiss, which was granted, but upon appeal the order was reversed. In reversing the order, the Supreme Court, after referring to the judgment of November, 1911, said: “That judgment, however erroneous it may be, purported to determine the case. The aforesaid appeals taken therefrom suspended all power of the court below to proceed, and necessarily took the case out of the operation of section 583 while the appeals remained pending.”
The respondent, citing Wolters v. Rossi, 126 Cal. 644, 59 P. 143, and Page v. Superior Court, 76 Cal. 372, 18 P. 385, contends that the dismissals in question, being based upon a written request to the clerk by the attorneys of the contestants, did not suspend proceedings at all, but left the contests at all times pending.
But the dismissals in the cases cited were before the amendment made in 1897 to section 581 of the Code of Civil Procedure, authorizing dismissal by entry in the clerk's register upon written consent of the attorney of the party requesting dismissal. Consequently, those cases are no longer declaratory of the law on that point. Hopkins v. Superior Court, 136 Cal. 552, 555, 69 P. 299. Moreover, there does appear to have been a minute order of dismissal by the court.
*512 It is contended further on behalf of respondent that the order vacating the dismissals had the effect of nullifying the intermission and placing the contests in the same situation in all respects as if there had been no dismissals at all. While the order **106 of restoration brought the contests again under the jurisdiction of the court, it cannot be said that by its own flat the court could create for itself a retroactive jurisdiction. When it is stated that upon the vacation of an order or judgment the case is restored to the previously existing status, that means that the parties are placed in their original situation for the purpose of litigating the matters in controversy. The restoration revives the right to enforce whatever claims or obligations existed at the commencement of the action, and makes them subject to future determination in due course. That is far from indulging a fiction that the case was in court for purposes of trial when it was not.
Thus the question is merely whether the time when the contests were out of court shall be counted. In Kinard v. Jordan, supra, the Supreme Court established the precedent of disregarding the time during which the jurisdiction of the trial court was suspended, thereby setting reality above artificiality; and in our judgment it is our duty, under the circumstances shown in the record before us, to follow that precedent.
The orders dismissing the petitions of said contestants to revoke probate of the will of said deceased are each reversed.
We concur: KNIGHT, Acting P. J.; CASHIN, J.
All Citations


Cumulative Form Listing (name and GPCSF number)

    General Instructions
    Form 2: Petition for Temporary Letters of Administration
    Form 3: Petition for Letters of Administration
    Form 4: Petition to Probate Will in Common Form
    Form 5: Petition to Probate Will in Solemn Form
    Form 6: Reserved See Supplement 6
    Form 7: Petition to Probate Will in Solemn Form & for Letters of Administration w/ Will Annexed
    Form 8: Petition for Letters of Administration with Will Annexed (Will Previously Probated)
    Form 9: Petition for Order Declaring No Administration Necessary
    Form 10: Petition for Year's Support
    Form 11: Petition for the Appointment of an Emergency Guardian and/or Conservator for a Proposed Ward
    Form 12: Petition for the Appointment of a Guardian and/or Conservator for a Proposed Ward
    Form 13: Petition of Personal Representative for Leave to Sell Property
    Form 14: Petition of Conservator for Leave to Sell Property or Rent, Lease, or Otherwise Dispose of Property
    Form 15: Petition for Leave to Sell Perishable Property by Conservator
    Form 16: Reserved See Supplement 1
    Form 17: Petition for Leave to Convey or Encumber Property Previously Set Aside as Year's Support
    Form 18: Petition for Presumption of Death of Missing Indvividual Believed to be Dead
    Form 19: Petition to Compromise Doubtful Claim of Minor/Ward
    Form 20: Petition for Leave to Encroach on Corpus
    Form 21: Bond of Administrators, Conservators, & Executors, Etc.
    Form 22: Petition to Establish Custodial Account for Minor or Incapacitated Adult
    Form 23: GPCSF 23 through 27 Reserved/Relocated
    Form 28: Petition for Temporary Letters of Guardianship of Minor
    Form 29: Petition for Permanent Letters of Guardianship of Minor
    Form 30: Petition for Letters of Conservatorship of Minor
    Form 31: Application for Permit to Conduct Public Fireworks Display
    Form 32: Petition by Personal Representative for Waiver of Bond and/or Grant of Certain Powers
    Form 33: Petition for Discharge of Personal Representative
I.    Specific Instructions
1. This form is to be used for a Petition for Discharge of a Personal Representative pursuant to O.C.G.A. § 53-7-50 or Discharge of a Temporary Administrator pursuant to O.C.G.A. § 53-7-52. A Personal Representative may, pursuant to O.C.G.A. § 53-7-50(e), petition the court solely for discharge from office but not from all liability.
2. If the Petition is filed by a Personal Representative, the notice to debtors and creditors must have been published for four weeks, and three months must have elapsed from the date of the last publication. O.C.G.A. §§ 53-7-41, 53-11-4.
3. Signatures of heirs who acknowledge service must be sworn to before a notary public or the Clerk of any Probate Court of this State. It is not necessary that all acknowledgments appear on the same page. An attorney at law may acknowledge service on behalf of an heir; however, the attorney must certify that he or she currently represents that heir with regard to the pending matter and, in order to comply with O.C.G.A. § 53-11-6, the attorney's signature must be sworn to as provided above. With regard to a power of attorney, the attorney-in-fact may acknowledge service on behalf of the grantor of the power, provided that the power of attorney grants such authority, the signature of the attorney-in-fact is attested, a copy of the power of attorney is attached, and the attorney-in-fact certifies that the copy is a true copy and is still in effect.
4. O.C.G.A. § 53-11-2 provides that a party to a probate proceeding who is not sui juris must be represented by a guardian provided that the Court may appoint a guardian ad litem or determine that the natural guardian, guardian, conservator, or testamentary guardian has no conflict and may serve. Should a guardian ad litem be necessary because a party is not sui juris, use Supplement 1.
5. Use Supplement 2 if the Court determines it is appropriate to appoint a special process server.
6. Use Supplement 3 when an additional certificate of service is necessary.7. In the event the Decedent died intestate, Paragraph 3 requires that a definitive statement be made to show to the court that the persons named in Paragraph 2 constitute all of the heirs of the Decedent and that there are no heirs of the same or closer degree according to O.C.G.A. § 53-2-1. Provide the date of death for any deceased heirs. [NOTE: If you are uncertain how to determine the heirs of a Decedent, please refer to the “Heirs Determination Sheet” available from the probate court or at] Examples of such statement would be: (a) “Decedent was or was not married at the time of his death and had no children born, adopted, living or deceased, other than listed herein”; (b) “Decedent had no other siblings half or whole other than those listed herein”; (c) “the Decedent’s brother who died previously had no other children born, adopted, living or deceased, other than listed herein.”
8. According to Probate Court Rule 5.6 (A), unless the Court specifically assumes the responsibility, it is the responsibility of the moving party to prepare the proper citation and deliver it properly so it can be served according to law. All pages after the Notice regarding Uniform Probate Court Rule 5.6 (A) are to be completed by the moving party, unless otherwise directed by the Court.
    Form 34: Petition of Conservator for Final Settlement of Accounts and Discharge from Office and Liability
    Form 35: Reserved See Supplement 4
    Form 36: Petition for the Appointment of a Temporary Medical Consent Guardian for a Proposed Medical Consent Ward
    Form 37: 37 through 51 Reserved/Relocated
    Form 52: Default Certificate
    Form 53: Commission to Administer Oath
    Form 54: Service upon Minor or Adult Ward through Service Upon Guardian
    Form 55: GPCSF 55 through 57 Reserved/Relocated
    Form 58: Adult Conservatorship Inventory and Asset Management Plan
    Form 59: Minor Conservator Inventory and Asset Management Program
    Form 60: GPCSF 60 Reserved
    Form 65: Petition for the Restoration of an Individual Found to Be in Need of a Guardian and/or Conservator
    Form 70: Certificate in Accordance with Uniform Probate Court Rule 5.9(D)
    Form 71: Petition for Leave to Sell Perishable Property by Personal Representative
    Form 72: Petition for Determination of Right of Disposition of Remains of a Decedent
    Supplement 1: Determination by Court that a Person May Act as Guardian or Appointment of Guardian Ad Litem
    Supplement 2: Appointment of Special Process Server
    Supplement 3: Certificate of Service
    Supplement 4: Guardian/Conservator/Personal Representative Oath
    Supplement 5: Petition for Letters of Testamentary Guardianship
    Supplement 6: Interrogatories to Witness to Will

See.  / forms


When can I expect the Estate Tax Closing Letter?

For all estate tax returns filed on or after June 1, 2015, estate tax closing letters will be issued only upon request by the taxpayer. Please wait at least four months after filing the return to make the closing letter request to allow time for processing. To request a closing letter please call (866) 699-4083 and provide the following information:

    Name of the decedent;
    Decedent’s social security number;
    Date of Death.

The closing letter will be prepared and issued to the executor at the address of record. For any additional questions about estate tax closing letter requests or the status of the return, call (866) 699-4083.

See also,

Am I required to file an estate tax return?

If the decedent is a U.S. citizen or resident and decedent's death occurred in 2016, an estate tax return (Form 706) must be filed if the gross estate of the decedent, increased by the decedent's adjusted taxable gifts and specific gift tax exemption, is valued at more than the filing threshold for the year of the decedent's death. The filing threshold for 2016 is $5,450,000, for 2015 is $5,430,000, for 2014 is $5,340,000, for 2013 is $5,250,000, for 2012 is $5,120,000, and for 2011 is $5,000,000. An estate tax return also must be filed if the estate elects to transfer any deceased spousal unused exclusion (DSUE) amount to a surviving spouse, regardless of the size of the gross estate or amount of adjusted taxable gifts. The election to transfer a DSUE amount to a surviving spouse is known as the portability election.

An estate tax return may need to be filed for a decedent who was a nonresident and not a U.S. citizen if the decedent had U.S.-situated assets. Refer to Some Nonresidents with U.S. Assets Must File Estate Tax Returns to learn more.


See also, the discharge of personal liabiltiy by the personal represenative for the taxes owed the federal government by the testator/estate.  26 U.S. Code § 6905 - Discharge of executor from personal liability for decedent’s income and gift taxes: (a) Discharge of liability.  In the case of liability of a decedent for taxes imposed by subtitle A or by chapter 12, if the executor makes written application (filed after the return with respect to such taxes is made and filed in such manner and such form as may be prescribed by regulations of the Secretary for release from personal liability for such taxes, the Secretary may notify the executor of the amount of such taxes. The executor, upon payment of the amount of which he is notified, after 9 months after receipt of the application if no notification is made by the Secretary before such date, shall be discharged from personal liability for any deficiency in such tax thereafter found to be due, and shall be entitled to a receipt or writing showing such discharge. (b) Definition of executor. For purposes of this section, the term “executor” means the executor or administrator of the decedent appointed, qualified, and acting within the United States. (c) Cross reference.  For discharge of executor from personal liability for taxes imposed under chapter 11, see section 2204.  (Added Pub. L. 91–614, title I, § 101(e)(1), Dec. 31, 1970, 84 Stat. 1837; amended Pub. L. 91–614, title I, § 101(f), Dec. 31, 1970, 84 Stat. 1838; Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834.).


In re Estate of John Malcolm Wade, 331 Ga.App. 535, 771 S.E.2d 214 (2015).


Court of Appeals of Georgia

March 25, 2015

         Estate. Charlton Superior Court. Before Judge DeVane.

          Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, G. Todd Carter, Emily R. Hancock, for appellant.

          Gibson & Associates, Adrienne J. Gibson, Douglas L. Gibson, Kenneth A. Taft, for appellee.


          Branch, Judge.

         In a 1982 will, John Malcolm Wade named all five of his children as co-executors of his estate. Soon after Wade died in 1987, the probate court issued letters testamentary to all five children, thereby appointing them as

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co-executors. Almost 25 years later, in August 2012, appellant Mary Virginia Wade petitioned the probate court to obtain an accounting of her siblings' dealings on behalf of the estate. After a trial, the probate court concluded that the siblings had [331 Ga.App. 536] violated the terms of their father's will and ordered an accounting of the estate. Three of the four siblings -- Bonnie Conner, Dorothy Vuturo, and Malcolm Wade[1] -- appealed to the superior court, where they moved for summary judgment on grounds including that Mary's action for an accounting was time-barred. On this appeal from the superior court's grant of the siblings' motion, Mary argues that her action is not time-barred because the estate was still open and because there was no adverse possession by her siblings that would have caused her cause of action to accrue and the statute of limitation to have run. We agree and therefore reverse.

    On appeal from the decision of a probate court, the superior court conducts a de novo investigation of the probate court's proceedings, and in doing so, will consider the records from the probate court, as well as other competent evidence which may not have been presented to the probate court.

Garren v. Garren, 316 Ga.App. 646, 647 (2) (730 S.E.2d 123) (2012), citing OCGA § 5-3-29. " 'It is not the province of the superior court on such an appeal to review and affirm, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.' " Id. at 648 (3), quoting Knowles v. Knowles, 125 Ga.App. 642, 645 (1) (188 S.E.2d 800) (1972). " To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991) (citations omitted). This Court reviews a trial court's grant of summary judgment de novo, construing the record in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12 (530 S.E.2d 477) (2000).

         Thus viewed in favor of Mary, the record, which is scant, shows that on December 29, 1987, all five of the Wade children were sworn in as co-executors. At some point shortly after their appointment, the siblings orally agreed that Mary would be the " coordinating executor" charged with paying the estate's bills. At some later point, however, the siblings agreed that any three of them could authorize payments by the estate and that Bonnie should administer its assets so as to wind up its affairs within six years. At an unspecified date, Mary took [331 Ga.App. 537] a share of the estate's personal property according to a system of apportionment also agreed upon by all five children. By another unspecified date, Mary had packed up the estate's papers and shipped them to Bonnie.

         In March 1988, a bank sent all five siblings checks and stock certificates representing what the bank called a "final distribution" from the estate's account at that bank. Of the five siblings, only Mary did not sign and return receipts for this attempted distribution. In August 1988, Malcolm negotiated a $1 million loan from a second bank to the estate in exchange for an interest in estate assets including real property in North Carolina and Georgia as well as nearly 9,000 shares of stock in the privately held " N. G. Wade Investment Co." In March 1989, Malcolm executed a power of attorney as to estate matters in favor of Bonnie.

         In February 1991, all five siblings received a summary from a certified public accountant valuing the estate's assets at approximately $1.2 million. By January 1993, Mary had received a four-carat diamond and documents concerning the estate's assets from Dorothy. In March 1993, Mary contacted the estate's accountant to ask for documents and noted that " until I have adequate financial records to see that Estate assets are distributed properly, I will not sign any papers to close the Estate[.]" In the same document, Mary also asserted that estate funds " ha[d] been spent without [her] knowledge or consent."

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In March 1994, Mary asked Bonnie for copies of documents relevant to the estate, including transfers of a house and an automobile and a copy of a sale agreement concerning timber on property located in North Carolina. In January 1999, Mary paid $60,000 on her own behalf and Bonnie paid $60,000 on behalf of the four remaining siblings to close out the 1988 loan to the estate. In the same year, Carolyn demanded that Bonnie allow her to review the estate's financial records.

         In January 2009, Bonnie wrote to Mary asking for her signature on an agreement between all the siblings to harvest timber from the estate's land in Charlton County and share the proceeds thereof, estimated at $27,700. The draft agreement noted that " a fire or pine beetles among other disasters could dev[a]state this gain offered to [the siblings] at any time." Bonnie also asked for Mary's signature on a second document requesting the probate court to close the estate, " all the business thereof being completed," and a recent bank statement showing an estate account balance of $9,547.76. Bonnie later averred that the siblings also sought to divide the Charlton County parcel at this time. Mary did not sign or return either the draft agreement or the request to close the estate.

          [331 Ga.App. 538] In August 2012, Mary filed her petition for an accounting in probate court. As they had previously, Dorothy and Malcolm filed notarized documents in the probate court authorizing Bonnie to act on their behalf concerning the estate. Dorothy stated that Bonnie had generated " remarkable amounts of money" for the beneficiaries, had " found the highest prices to be paid for timber and land sales," and " created and oversaw many positive outcomes for her brother and sisters." After the November 2012 hearing, at which only Mary and Bonnie appeared,[2] the probate court held that that in light of Bonnie's admission that she or others had " intentionally destroyed" many estate records, " any difficulty the co-executors have had in preparing an accounting [would] be entirely self-inflicted." The probate court also concluded that " decisions regarding the administration of the estate" had been made " by a majority of the co-executors," rather than unanimously, in apparent violation of both OCGA § 53-7-5 (a)[3] and the terms of John Malcolm Wade's will, which did not contain any provision for majority rather than unanimous action. The probate court ordered an accounting within 90 days.

         In January 2013, the siblings appealed the probate court's ruling to the superior court. Both sides moved for summary judgment -- the siblings on the grounds that Mary's petition was time-barred and that she had refused to relinquish the diamond or otherwise agree to a division of the estate's property, and Mary on the ground that the siblings were required to render an accounting as a matter of law. In an August 2013 affidavit, Bonnie testified that the estate's only remaining undistributed assets were the 29-acre Charlton County parcel of land and the diamond Mary had received many years before. Also in August 2013, the siblings filed a counterclaim against Mary for conversion of the family diamond. In April 2014, the superior court granted the siblings' motion for summary judgment without explanation and without ruling on the siblings' counterclaim. This appeal followed.

          [331 Ga.App. 539] 1. As the parties agree, the first question is whether Mary's petition for an accounting is time-barred under OCGA § § 53-7-62 (a)

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and 9-3-27. Mary argues that she may seek an accounting at any time while the estate remains open, while the siblings argue that Mary was required to bring such an action no later than ten years and six months after the appointment of the co-executors. Both of these contentions miss the mark.

         OCGA § 53-7-62 (a) provides in relevant part that " [a]ny person interested as an heir or beneficiary of an estate or the probate court may, after the expiration of six months from the granting of letters, cite the personal representative to appear before the probate court for a settlement of accounts." OCGA § 9-3-27 provides that " [a]ll actions against executors, administrators, or guardians, except on their bonds, shall be brought within ten years after the right of action accrues." The ten-year limitation period of OCGA § 9-3-27 applies to petitions for an accounting. Rowland v. Rowland, 204 Ga. 603, 608 (5) (50 S.E.2d 343) (1948).

         The five original co-executors received their letters testamentary in December 1987, with the result that Mary could have brought an action for accounting as early as June 1988, or six months after their appointment. OCGA § 53-7-62 (a). As co-executors, however, each of the five siblings owes all the others, who are also co-beneficiaries, the care required of a fiduciary. Bloodworth v. Bloodworth, 260 Ga.App. 466, 471 (1) (579 S.E.2d 858) (2003) (" [a]s fiduciaries," co-executors " acquired a number of legal duties in relation to the beneficiaries," including " full and fair disclosure in a timely manner of all things adversely affecting" the beneficiaries' rights). Because of the high standard of care imposed on executors, the Supreme Court of Georgia has long refused to apply the ten-year statute of limitation to bar a beneficiary's action for accounting by an executor in the absence of evidence that the executor has held the estate's property adversely to the beneficiary:

    [I]t is well settled in [Georgia] that not only in express or implied trusts, but in other fiduciary relations, the statute [of limitation] will not begin to run so long as the trust or duty with regard to specific property continues, is acknowledged to be subsisting, and there is no change of status to show an adverse holding of such property; that as long as a person who is in possession of the property of another, using the same for the owner's benefit, recognizes the latter's ownership, no lapse of time will bar the owner from asserting his title as against the person in possession ; that before any lapse of time will be a bar to the owner it must appear that the [331 Ga.App. 540] person in possession has given notice, or there must be circumstances shown which would be equivalent to notice to the owner that the person in possession claims adversely to him ; that in such a case the statute will begin to run from the date of such notice; and that until the owner has such notice he has the right to treat the possession of the other person as his own.

Reynolds v. Dorsey, 188 Ga. 218, 221 (2) (3 S.E.2d 564) (1939) (citations omitted; emphasis supplied); Salter v. Salter, 209 Ga. 90, 95 (2) (70 S.E.2d 453) (1952); Manry v. Manry, 196 Ga. 365, 369 (2) (26 S.E.2d 706) (1943) (" So long as the executors h[o]ld the title and possession of [an] estate as such, it [is] a continuing executory trust, and the bar of the statute of limitations does not run against such a trust until its termination or repudiation." ) (citations omitted); see also In re Estate of Holtzclaw, 293 Ga.App. 577 (667 S.E.2d 432) (2008) (concerning fee awards arising from a petition for accounting brought in 2005 against an executor appointed in 1984, but not addressing the accrual of the petitioner's cause of action).

         It is true that in her 1993 letter to the estate's accountant, Mary both asked for information as to the estate and accused at least one of her siblings of " spending" at least some of the estate's assets without her " knowledge or consent." This letter was sent to the estate's accountant, not to any of her co-executors, however, and it sought to reserve Mary's own right as co-executor to review the documents, and not to exercise her right as a beneficiary to obtain an accounting. Compare Rowland, 204 Ga. at 604, 608 (5) (applying OCGA § 9-3-27 to bar an action for accounting where the executor, " although requested to do so," had " never made any accounting or settlement

Page 218

with the [beneficiaries] for their interest in [an] estate" ). Further, we have seen nothing in the record to suggest that the siblings ever denied Mary's status as a co-beneficiary of any specific property owned by the estate. To the contrary, the record also shows that whatever disagreements may have arisen about the disposition of the estate, no sibling ever repudiated any other sibling's right to a proportionate share in those contents, as when the siblings presented Mary with a proposed settlement of the estate's assets in 1988, only four months after the appointment of the co-executors, and in 2009, when they attempted to dispose of the Charlton County land parcel and to close the estate.

         A question of fact thus remains as to whether any of the siblings' actions before the filing of Mary's petition put Mary on notice that they had claimed any estate property adversely to her. Because we cannot say as a matter of law that the siblings adversely held the [331 Ga.App. 541] estate's assets or repudiated Mary's claim on them at any time before Mary filed her petition, a jury must decide whether the ten-year bar of OCGA § 9-3-27 began to run before that time. It follows that the trial court erred when it granted summary judgment to the siblings on this basis. Salter, 209 Ga. at 96-97 (affirming overruling of demurrer to petition for accounting where nothing on the face of the petition showed that the trust at issue " was not acknowledged to be subsisting or that there was any change of status to show an adverse holding by the executors that would bring this case within the statute of limitations" ); Manry, 196 Ga. at 369 (2) (where a will did not direct when a division of an estate was to be made, a beneficiary's action for accounting was not time-barred when the executors had qualified 15 years before but had not disposed of the estate's assets until six years before the filing of the action).

         2. The record shows that the siblings also moved for summary judgment on the ground that Mary had refused to agree to a division of the estate's property. The trial court made no finding on this question, and the parties have not briefed the matter on appeal. We therefore leave it to further proceedings below. See City of Gainesville v. Dodd, 275 Ga. 834, 835-836 (573 S.E.2d 369) (2002) (appellate court may exercise its discretion to determine whether a ground for summary judgment raised but not ruled on below is properly affirmed). Our decision also moots Mary's assertion that the trial court erred in failing to grant her summary judgment.

          Judgment reversed.

          Barnes, P. J., and Boggs, J., concur.



[1]The fourth  sibling, Carolyn, did not appear at the hearing before the probate court below and is not a party to this appeal.

[2]The record does not include a transcript of the hearing before the probate court.

[3]OCGA § 53-7-5 (a) of the Revised Probate Code of 1998 provides that
 " [i]f more than one personal representative is qualified and unless the will provides otherwise ... , [t]he personal representatives must act by their unanimous action[.]" The same subsection also specifies, however, that " [t]he personal representatives may delegate in writing to one or more of them the authority to act for all of them; provided, however, that all the personal representatives remain liable for the actions  of the personal representative who is authorized to act." Id. Mary has not asserted any error as to the application of the Revised Probate Code to this dispute. See OCGA § 53-1-1 (b) (Revised Probate Code of 1998 became effective on January 1 of that year, " provided, however, that no vested rights of title, year's support, succession, or inheritance shall be impaired" ); McPherson v. McPherson, 307 Ga.App. 548, 550-551 (1) (a) (705 S.E.2d 314) (applying Revised Trust Code of 2010 to earlier trust instrument and transactions where that application did not affect any " vested rights" ).


Paul et al. v.  Smith, Gambrell & Russell, 323 Ga.App. 447, 746 S.E.2d 739 (2013)

July 16, 2013

         Reconsideration denied July 29, 2013 -- Cert. applied for.

Page 740

         Dismissal; five-year rule. Fulton State Court. Before Judge Forsling.

          Frank J. Beltran, for appellants.

          Weinberg, Wheeler, Hudgins, Gunn & Dial, Shawn D. Scott , Robert G. Tanner, for appellee.

         MILLER, Judge. Barnes, P. J., and Ray, J., concur in judgment only.


Page 741

          Miller, Judge.

         This is the third appeal arising out of a legal malpractice action that Appellants G. Douglas Paul, Sharon V. Paul, Catspaw Productions, Inc. (" CPI" ), Catspaw, Inc., Atlanta Catco, Inc., and Recording Studio, Inc. (" RSI" ) commenced against Smith, Gambrell & Russell (" Smith Gambrell" ) in 2002. See Paul v. Smith, Gambrell & Russell, 267 Ga.App. 107 (599 S.E.2d 206) (2004) (" Paul I " ); Paul v. Smith, Gambrell & Russell, 283 Ga.App. 584 (642 S.E.2d 217) (2007) (" Paul II " ). In Paul II, the parties filed cross-appeals from the trial court's April 11, 2005 order granting in part and denying in part Smith Gambrell's second motion for summary judgment. 283 Ga.App. at 584-585. For the next five years after the April 11, 2005 order, no written order was entered in the trial court. On July 12, 2011, the trial court entered an order memorializing the automatic dismissal of the case pursuant to OCGA § § 9-2-60 (b) and 9-11-41 (e), concluding that more than five years had elapsed since the last order was entered in the case. On appeal, Appellants argue, among other things, that the five-year period was tolled during the pendency of the cross-appeals in Paul II. Finding this and Appellants' other arguments unavailing, we affirm.

          This appeal presents a question of law subject to de novo review. See Jinks v. Eastman Enterprises, 317 Ga.App. 489, 489-490 (731 S.E.2d 378) (2012).

         As recounted in greater detail in Paul II, Appellants' action arises out of Smith Gambrell's representation of Appellants prior to and during a lawsuit Ralph Destito, a shareholder of RSI and a former employee of CPI, commenced against Appellants for fraud, breach of fiduciary duty, and related claims (the " Destito action" ). 283 Ga.App. at 584-587. The Destito action resulted in a substantial verdict and judgment against Appellants, and the judgment was affirmed on appeal.[1] Id. at 584.

         In the first of two motions for summary judgment in the present case, Smith Gambrell sought summary judgment on the issue of [323 Ga.App. 448] punitive damages and its liability for failing to call an accounting expert at trial in the Destito action, and the trial court granted its motion on both issues. See Paul I, supra, 267 Ga.App. at 107-108. On appeal, this Court affirmed on the issue of punitive damages but reversed as to the claim for failure to call an accounting expert. Id. at 108. Prior to the decision in Paul I, Smith Gambrell filed its second motion for summary judgment on the issues of its alleged malpractice in preparing documents to merge RSI into CPI and subsequent Articles of Correction to reverse the merger and its failure to prepare the Pauls to testify at trial in the Destito action. Smith Gambrell's second motion did not address the claim regarding the failure to call an accounting expert, as the trial court had granted summary judgment in its favor on that claim.

         In its April 11, 2005 order, the trial court granted Smith Gambrell summary judgment on the issue of failing to prepare the Pauls for trial but denied summary judgment on the issue of Smith Gambrell's failure to exercise reasonable care in preparing the merger documents. The parties filed cross-appeals, and this Court affirmed the April 11, 2005 order. Paul II, supra, 283 Ga.App. at 585.

         No written order was entered in the record following the April 11, 2005 order until an order was entered on December 13, 2010 specially setting the matter for trial. After a jury was empaneled on April 12, 2011, the trial court declared a mistrial, finding that

Page 742

Appellants failed to identify one of its claims and supporting expert opinions during discovery. Smith Gambrell subsequently moved to strike the action from the docket under OCGA § § 9-2-60 (b) and 9-11-41 (e), and the trial court entered an order memorializing the automatic dismissal of the case.

         1. Appellants argue the trial court erred in concluding that its action was dismissed by operation of law because the five-year period under OCGA § § 9-2-60 (b) and 9-11-41 (e) was tolled during the pendency of the cross-appeals in Paul II. We disagree.

         " 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[.]' " Zepp v. Brannen, 283 Ga. 395, 396 (658 S.E.2d 567) (2008). The five-year rule is " a reasonable procedural rule" that serves " the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and of protecting litigants from dilatory counsel." (Citation and punctuation omitted.) Brown v. Kroger Co., 278 Ga. 65, 68 (597 S.E.2d 382) (2004). These Code sections are mandatory, and dismissal occurs by operation of law. Republic Claims Svc. Co. v. Hoyal, 264 Ga. 127, 128 (441 S.E.2d 755) (1994); Roberts v. Eayrs, 297 Ga.App. 821, 822 (2) [323 Ga.App. 449] (678 S.E.2d 535) (2009). We apply a bright-line rule for determining whether an order is sufficient to reset the five-year clock. Windsor v. City of Atlanta, 287 Ga. 334, 336 (2) (695 S.E.2d 576) (2010). " [I]n 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.) Id.

         Here, it is undisputed that more than five years elapsed following the entry of the April 11, 2005 order before another written order was entered in the record. Appellants attempted to avoid the otherwise straightforward application of the fiveyear rule by arguing that the five-year period was tolled for 22 months while the April 11, 2005 order was on appeal in Paul II because a supersedeas was in effect pursuant to OCGA § 5-6-46 (a), depriving the trial court of jurisdiction. We have recognized that the five-year period may be tolled under certain circumstances when a trial court completely loses jurisdiction over a case. See, e.g., Jinks, supra, 317 Ga.App. at 491 (bankruptcy stay); Southern Bell Tel. & Tel. Co. v. Perry, 168 Ga.App. 387, 388 (308 S.E.2d 848) (1983) (removal to federal court). It is well established, however, that " [t]he supersedeas that stems from the filing of [a] ... notice of appeal is limited in that it supersedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal." (Citation and punctuation omitted.) Avren v. Garten, 289 Ga. 186, 190 (6) (710 S.E.2d 130) (2011).

         Appellants argue that the trial court was divested of all jurisdiction in the case during the Paul II cross-appeals because Smith Gambrell's second motion for summary judgment stated that Smith Gambrell was entitled to summary judgment on the " entire case." Once this Court issued its decision in Paul I reinstating Appellants' claim regarding the failure to call an accounting expert, however, it was apparent that a portion of Appellants' case would remain pending even if Smith Gambrell prevailed on its second motion for summary judgment. As such, the trial court had jurisdiction to proceed with at least part of the case during the pendency of the cross-appeals, see Craft's Ocean Court v. Coast House, Ltd., 255 Ga. 336, 337-338 (2) (338 S.E.2d 277) (1986), and we conclude that no tolling of the five-year period occurred.[2]

Page 743

         [323 Ga.App. 450] Nelson v. Haugabrook, 282 Ga.App. 399 (638 S.E.2d 840) (2006), upon which Appellants rely, does not support a contrary result. In Nelson we held that the five-year period was not tolled in between the time a certificate of immediate appellate review of an interlocutory order was filed in the trial court and the appellant's application for interlocutory review was denied. 282 Ga.App. at 401-402 (1) (b). Since the application was denied, the appellant in Nelson never filed a notice of appeal effecting a supersedeas, and no loss of jurisdiction occurred. Id. at 402 (1) (b). In Nelson, we did not address whether a supersedeas would provide a basis for tolling the five-year period, and indeed, we acknowledged that a supersedeas effects a loss of jurisdiction only " as to matters contained within the appeal." (Footnote omitted.) Id.

         2. Relying on Simmerson v. Blanks, 183 Ga.App. 863 (360 S.E.2d 422) (1987), Appellants contend that the Court should reverse the trial court's dismissal order to avoid a " manifest injustice." We disagree. In Simmerson, the trial court dismissed an action under the five-year rule, concluding that a prior continuance order that would have prevented dismissal was invalid because it was entered ex parte and without a written motion. Id. This Court disagreed that the continuance order was invalid and applied the rule that a trial judge may not revoke a granted continuance where " manifest injustice would result." (Citation and punctuation omitted.) Id. at 864. The Court concluded that revocation would result in a manifest injustice because revocation occurred three years after the continuance was granted and five years had passed from the last written order prior to the continuance order. Id. No similar circumstances are present here, and the trial court in this case did not enter any order at all for a period in excess of five years after the April 11, 2005 order.

         3. Appellants also rely on Jefferson v. Ross, 250 Ga. 817 (301 S.E.2d 268) (1983), to argue that dismissing their case would not serve the purposes of the five-year rule. In Jefferson, the Supreme Court of Georgia held that a trial court's authority to enter judgment at any time after a jury verdict is not extinguished by the passage of five years from the date of the verdict, finding that " the reasons behind the Code sections ... no longer exist once the case has been prosecuted to verdict." Id. at 818. Jefferson stands for the proposition that the [323 Ga.App. 451] five-year rule " applies to cases awaiting disposition, not to cases already adjudicated by verdict or judgment." (Citations omitted.) Lott v. Arrington & Hollowell, P.C., 258 Ga.App. 51, 55 (2) (b) (572 S.E.2d 664) (2002). Appellants' action never proceeded to verdict. Further, the issue here is not the passage of five years following a disposition in the case. Rather, five years passed without a written order before this case was set for trial. Since the case was automatically dismissed as a matter of law, a trial and verdict would have been a " mere nullity." (Citations omitted.) Goodwyn v. Carter, 252 Ga.App. 114, 116 (555 S.E.2d 474) (2001). The holding in Jefferson cannot save Appellants' action from automatic dismissal.

         4. Finally, Appellants cite to news stories reporting that the trial judge's case manager had engaged in misconduct such as discarding original orders and pleadings and hiding files in a utility closet. They argue that " [w]hile there is no evidence that any files related to this case were discovered [in the closet], a reasonable probability exists that [the] case manager hid or threw away orders in this case." While the accounts that Appellants reference are disturbing, " [t]he mandatory duty ... falls upon the plaintiff to obtain a written order and have it entered upon the record to prevent an automatic dismissal." (Punctuation and footnote omitted.) Roberts, supra, 297 Ga.App. at 822 (2). As it was Appellants' responsibility to obtain and file an order, they cannot avoid dismissal by speculating about

Page 744

unspecified orders that were possibly mishandled by a court employee.

          Judgment affirmed.

          Barnes, P. J., and Ray, J., concur in judgment only.



[1]See Paul v. Destito, 250 Ga.App. 631 (550 S.E.2d 739) (2001).

[2]In their reply brief Appellants argue that due to statements in Smith Gambrell's Appellant's Brief in Paul II, as to the scope of the merger-related issues on appeal, Appellants reasonably believed the " entire case" was before this Court, and, as a result, the five-year period was tolled, at a minimum, for the eight months between the filing of Smith Gambrell's brief and the remittitur from this Court. Given that the claim regarding the failure to call an accounting expert was indisputably still pending in the trial court, Appellants' alleged belief that the entire case was on appeal was not reasonable. In any event, an alleged mistaken impression as to the issues on appeal would not relieve Appellants of the duty to ensure that a written order signed by the trial judge was entered in the record. See Willis v. Columbus Medical Center, 306 Ga.App. 331, 333 (702 S.E.2d 673) (2010) (counsel's mistaken belief that Office of Dispute Resolution filed mediation order with clerk, as was its usual practice, could not prevent dismissal).