Cornelius v. Morris Brown College

On March 12, 2008, a trial court entered an order memorializing the August 2007 automatic dismissal of this wrongful death action for failure to prosecute. In Case No. A09A0394, plaintiffs Hartwill Cornelius III and Patricia Cornelius argue that their motion to stay the action under the Servicemembers Civil Relief Act, 50 USC Appx. § 526, preempted and tolled the five-year rule set out in OCGA § 9-2-60 (b). In Case No. A09A0395, defendants Morris Brown College and Eugene Robinson argue that the trial court erred when it denied their motion for summary judgment. We affirm in Case No. A09A0394 and reverse in Case No. A09A0395.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003). A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

So viewed, the evidence shows that on the evening of August 29, 1997, Hartwill Cornelius iy a returning Morris Brown student, and his friends gathered on the steps of a campus building. One of the friends went to a car to retrieve a CD. Shortly thereafter, a second friend heard that a fight had started. He turned around and saw two men attacking the first friend. A car then pulled up, several people got out, and the fight escalated to include seven or eight people. Hartwill IV and others then ran across the street and joined the fight. An unknown male struck Hartwill IV on the back of the head with a glass bottle. He later died from his injuries.

Plaintiffs brought this action for the wrongful death of their son, alleging that defendants failed to implement adequate security measures despite their knowledge of a high potential for danger in the area of the attack. In August 2002, the trial court denied defendants’ motion for summary judgment. In January 2003, Hartwill III was deployed to Iraq. On May 1, 2003, plaintiffs filed a motion to stay the action until such time as Hartwill III was released from active duty. Plaintiffs’ counsel sent a courtesy copy of the motion to the trial court with a cover letter stating that the defendants had consented to the motion. The trial court later noted, however, that the motion to stay had never appeared on its calendar.

On March 12, 2008, finding that no written order had been taken in the case since August 2002, the trial court entered an order noting that the action had been dismissed by operation of law. *84Plaintiffs then moved to set aside this March 12 order. The trial court denied the motion but extended the time for filing a notice of appeal.

Case No. A09A0394

1. Plaintiffs argue that the trial court erred when it entered its order noting the case’s dismissal for failure to prosecute. We disagree.

Georgia’s automatic dismissal statutes, OCGA §§ 9-2-60 and 9-11-41 (e), have “the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel.” (Punctuation omitted.) Brown v. Kroger Co., 278 Ga. 65, 68 (597 SE2d 382) (2004), quoting Ga. Dept. of Med. Assistance v. Columbia Convalescent Center, 265 Ga. 638, 640 (1) (458 SE2d 635) (1995); see also Swint v. Smith, 219 Ga. 532, 534 (3) (134 SE2d 595) (1964).

[T]he statute grants a litigant five years to produce only the most minimal of activity to avoid dismissal and thereby to obtain a hearing on her claims. Moreover, in the event of dismissal, it permits the litigant to obtain a hearing on her claims by giving her the right to renew the action within six months of dismissal.

Brown, 278 Ga. at 68. What amounts to a five-and-a-half year rule is no less fair than a statute of limitation, for example, which may likewise “eliminate a claim that is not in fact stale.” Id.

The last valid order entered in this case was the trial court’s certificate of immediate review, granted on August 14, 2002. Plaintiffs’ April 2003 motion for a stay was never ruled on. As we recently held:

The mandatory duty to obtain and file an order falls upon the plaintiff to obtain a written order and have it entered upon the record to prevent an automatic dismissal [under OCGA §§ 9-11-41 (e) and 9-2-60 (b)]. In order to satisfy the statute, 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. No party can waive this requirement.

Roberts v. Eayrs, 297 Ga. App. 821, 822 (2) (678 SE2d 535) (2009), quoting Clark v. Clark, 293 Ga. App. 309, 311 (667 SE2d 103) (2008). Plaintiffs’ case was thus dismissed by operation of law on August 14, 2007, and no renewal action was filed. See OCGA § 9-11-41 (e) (renewal action may be filed within six months). Instead, plaintiffs *85merely brought a motion to reconsider the automatic dismissal that had taken effect nine months earlier. But their action was “completely lifeless for all purposes” from the time of the automatic dismissal. Brown, 278 Ga. at 68, quoting Goodwyn v. Carter, 252 Ga. App. 114, 115 (555 SE2d 474) (2001); see also Dollar v. Webb, 132 Ga. App. 811 (209 SE2d 253) (1974).

The trial court’s order of March 12, 2008, noted the action’s dismissal by operation of law. But “any subsequent order after the automatic dismissal of the case is null and void, because the trial court has lost jurisdiction over the case, which no longer is pending before it.” (Punctuation omitted.) Brown, 278 Ga. at 69. The only possible effect of the March 12 order was thus to authorize an appellate court to affirm the automatic dismissal by reason of the trial court’s lack of jurisdiction.1 See id. at 66, n. 3 (granting writ of certiorari from Court of Appeals’ dismissal of appeal from trial court’s grant of summary judgment on basis of automatic dismissal, and affirming the trial court on the merits); Nelson v. Haugabrook, 282 Ga. App. 399, 402 (2) (638 SE2d 840) (2006) (order memorializing automatic dismissal is “apparently directly appealable”); Darden v. Ravan, 232 Ga. 756, 758 (1) (208 SE2d 846) (1974) (appeal from a judgment void for lack of subject matter jurisdiction “will not be dismissed but instead, the void judgment will be reversed”).

There is no authority for appellants’ proposition that the Servicemembers Act preempts Georgia civil procedure law. A stay under the Act does not go into effect by operation of law or by the filing of a motion alone. On the contrary, 50 USC Appx. § 522 authorizes the grant of a stay only after the consideration of an application, the requirements of which are laid out in subsection (b) of that statute. In the absence of any actual or imagined conflict between those provisions of the federal statute requiring a trial court to rule on a motion to stay under the Act and our own dismissed statutes, which also require a properly signed and filed order, we are entirely unjustified in finding preemption. See Duren v. Paccar, Inc., 249 Ga. App. 758 (549 SE2d 755) (2001) (reversing grant of summary judgment where federal regulations concerning truck safety device did not expressly or impliedly preempt Georgia law).

Because “no written order” was entered in this action “for a period of five years,” OCGA § 9-2-60 (b), plaintiffs’ action was *86dismissed by operation of law, and the trial court’s memorialization of the automatic dismissal resulting from that fact was not erroneous. Brown, 278 Ga. at 69 (affirming trial court’s judgment that renewal action was not authorized); Roberts, 297 Ga. App. at 823 (2) (affirming automatic dismissal); Goodwyn, 252 Ga. App. at 116 (affirming automatic dismissal); Dollar, 132 Ga. App. at 811 (affirming automatic dismissal).

2. In light of the above, plaintiffs’ remaining assertions in Case No. A09A0394 are moot.

Case No. A09A0395

3. Defendants first argue that the trial court erred when it denied summary judgment. We agree.

“[A]n adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law.” Fagan v. Atnalta, Inc., 189 Ga. App. 460, 461 (376 SE2d 204) (1988). Our whole-court decision in Fagan rejected the dissenters’ argument that the rescue doctrine could apply to a fight case. Id. at 462, 464. Even when a person enters into an altercation with the purpose of breaking it up, the responsibility for any injury lies with the intervenor: “the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation.” (Punctuation omitted.) Hansen v. Etheridge, 232 Ga. App. 408, 410 (501 SE2d 517) (1998).

The record shows that Hartwill IV ran across the street to join a fight already begun between three others. There is no evidence in the record to show that any weapon was involved before Hartwill IV joined the altercation such that the rescue doctrine would apply. As in Fagan, Hansen, and many other cases, then “only one conclusion is permissible” here: that Hartwill IV “deliberately interjected himself into the affray,” and “assumed the risk of injury by voluntarily confronting” those who had begun it. Fagan, 189 Ga. App. at 462 (affirming grant of summary judgment to bar owner sued by patron concerning injuries suffered in bar fight); see also Hansen, 232 Ga. App. at 410 (affirming grant of summary judgment to premises owner where plaintiffs’ son was killed after attempting to break up a fight); Habersham Venture v. Breedlove, 244 Ga. App. 407, 411 (4) (535 SE2d 788) (2000) (reversing denial of summary judgment when plaintiff “voluntarily chose to enter into mutual combat with the assailants”); Rappenecker v. LSE, Inc., 236 Ga. App. 86, 87 (1) (510 SE2d 871) (1999) (affirming grant of summary judgment to proprietor because plaintiff struck on the head with a beer bottle assumed any risk of injury by entering altercation).

*874. In light of the above, defendants’ assertion concerning the trial court’s improper reliance on inadmissible hearsay is moot.

Judgment affirmed in Case No. A09A0394. Judgment reversed in Case No. A09A0395. Johnson, P. J., Blackburn, P. J., and Ellington, J., concur. Barnes, J., concurs in the judgment only. Miller, C. J., and Mikell, J., dissent.