Dixon v. Barnes
| Decision Date | 14 July 1994 |
| Docket Number | No. A94A1055,A94A1055 |
| Citation | 446 S.E.2d 774,214 Ga.App. 7 |
| Parties | DIXON v. BARNES. |
| Court | Georgia Court of Appeals |
Shaw, Maddox, Graham, Monk & Boling, David F. Guldenschuh, Rome, for appellant.
Davidson & Strain, William E. Davidson, Jr., Rome, for appellee.
We granted Dixon's application for an interlocutory appeal from the trial court's order denying his motion to dismiss Barnes' medical malpractice complaint for failure to timely file the expert affidavit required by OCGA § 9-11-9.1 and granting Barnes an extension of time to file the affidavit.
Because the statute of limitation expired within 10 days of the filing of her complaint on May 24, 1993, Barnes relied upon the provisions of OCGA § 9-11-9.1(b) allowing forty-five days after the filing of the complaint to supplement the pleadings with the required expert affidavit. After no expert affidavit was filed within the 45-day extension period which expired on July 8, 1993, Hamilton moved for dismissal on July 28, 1993. On August 26, 1993, seven weeks after the forty-five-day period had expired, Barnes proffered an expert affidavit and moved for an extension to file the affidavit for "good cause." Concluding that Barnes had shown "good cause" because her treating physician refused "at the last minute before filing the complaint ... to execute an affidavit," the trial court denied the motion to dismiss and granted an extension of time for filing the affidavit pursuant to OCGA § 9-11-9.1(b). Despite the fact that the motion for extension had not been filed within the original 45-day extension period, the trial court ruled that Barnes justifiably relied on language in Emory Clinic v. Wyatt, 200 Ga.App. 184, 407 S.E.2d 135 (1991), and Brake v. Mintz, 193 Ga.App. 662, 388 S.E.2d 715 (1989), indicating that a motion for an extension could be considered and granted for good cause even if filed after the expiration of the initial 45-day extension.
1. Appellant claims the motion seeking additional time to file the affidavit was untimely filed after the initial 45-day extension and that the trial court erred by considering the motion.
After providing for an automatic 45-day extension for filing the required expert affidavit, OCGA § 9-11-9.1(b) further provides that "[t]he trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires." In both the Brake and Emory Clinic cases cited by the trial court, the plaintiffs invoked the 45-day extension of time in which to file an expert affidavit pursuant to OCGA § 9-11-9.1 and subsequently moved, before the end of the 45-day period, for the trial court to further extend the time for "good cause." In Brake, supra at 664, 388 S.E.2d 715, the plaintiff argued that the extension provisions of OCGA § 9-11-9.1(b) should be construed together with OCGA § 9-11-6(b). Under § 9-11-6(b) the trial court may: (1) extend the original period of time "for cause shown" if a request is mailed before the expiration of the original period, or (2) if a motion for additional time is filed after the expiration of the original time period, enter an order "permit[ting] the act to be done where the failure to act was the result of excusable neglect." In holding that OCGA § 9-11-6(b) was not applicable, we stated that (Citations and punctuation omitted.) Id. at 664-665, 388 S.E.2d 715. In Emory Clinic, supra 200 Ga.App. at 184-185, 407 S.E.2d 135, although the plaintiff moved for an extension within the original 45-day period, defendants argued that the plaintiff failed to secure a ruling on the extension within the 45-day period. We stated that "[n]othing in OCGA § 9-11-9.1(b) specifically provides that either the motion for an extension of time or the order thereon must necessarily be filed before the initial 45-day period has expired." Id. at 185, 407 S.E.2d 135.
The statements in Brake, supra and Emory Clinic, supra, indicating that a motion to extend the initial 45-day period may be considered under the "good cause" standard when filed after the 45-day period has expired are dicta and will not be followed. By providing in § 9-11-9.1(b) that "[t]he trial court may, on motion, after hearing and for good cause extend such time ...," we believe the Legislature intended that any motion to extend the initial 45-day period must be filed before the expiration of such period.
The extension of time provisions enacted by the Legislature in OCGA § 9-11-6(b) are instructive in this regard. Under § 9-11-6(b)(1), upon request for enlargement of the time to do an act made before expiration of the initial time period, the trial court, "for cause shown," is authorized to "order the period extended." (Emphasis supplied.) Under section (b)(2) of the statute, if a request for enlargement of time to do an act is made after the expiration of the initial period, the trial court, for "excusable neglect," may "permit the act to be done." (Emphasis supplied.) The distinction is important for two reasons. First, this language shows that a request for an extension of a period of time under the statute refers to an enlargement of the initial time period prior to its expiration, whereas a request for enlargement of the permitted time to do an act after the initial period has expired refers, not to an extension of the applicable period, but to permission to do an act outside the applicable period. Secondly, the Legislature distinguished extension requests from requests for additional time after expiration of the specified period by applying a higher "excusable neglect" standard to the latter. Accordingly, we conclude the language of OCGA § 9-11-9.1(b) authorizing the trial court to apply a single "for good cause" standard to "extend" the applicable 45-day period refers to requests for extensions prior to the expiration of the applicable period.
We find this view of the extension provisions of OCGA § 9-11-9.1(b) consistent with the intent of the statute requiring the prompt filing of an expert affidavit along with the complaint and the elimination of frivolous malpractice claims. 0-1 Drs. Mem. Holding Co. v. Moore, 190 Ga.App. 286, 288, 378 S.E.2d 708 (1989). Moreover, since under OCGA § 9-11-9.1(c), the defendant need not answer the complaint until 30 days after the filing of the expert affidavit, ...
To continue reading
Request your trial
-
Sisk v. Patel
...as written. 1 See Emory Clinic v. Wyatt, 200 Ga.App. 184(1), 407 S.E.2d 135 (1991), disapproved on other grounds, Dixon v. Barnes, 214 Ga.App. 7, 9(1), 446 S.E.2d 774 (1994).2 This view goes back to a statement by this court in Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865(2), 1......
- T.A.W., In Interest of
-
Works v. Aupont
...constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared." OCGA § 9-11-9.1(b). See Dixon v. Barnes, 214 Ga.App. 7, 8(1), 446 S.E.2d 774. If these two conditions are met, it does not matter whether the trial court believes or disbelieves a plaintiff's alleg......
-
Peterson v. Columbus Med. Center Foundation
...period has expired. Labovitz v. Hopkinson, 271 Ga. 330, 332-333(2), 519 S.E.2d 672 (1999), overruling by implication Dixon v. Barnes, 214 Ga.App. 7(1), 446 S.E.2d 774 (1994). In that case, the Supreme Court held that res judicata did not bar a nonmalpractice claim arising out of the same fa......
-
Trial Practice and Procedure - C. Frederick Overby and Jason Crawford
...72. Id. at 509, 451 S.E.2d at 68. 73. Id. 74. Id. 75. Id. at 508, 451 S.E.2d at 68. 76. O.C.G.A. Sec. 9-ll-9.1(b). 77. Id. 78. Id. 79. 214 Ga. App. 7, 446 S.E.2d 774 (1994). 80. Id. at 8, 446 S.E.2d at 775. 81. Id. at 9-10, 446 S.E.2d at 776-77. 82. Id. at 8, 446 S.E.2d at 776. 83. Id. at 9......