Harris v. Murray

• Citation: 504 S.E.2d 736,233 Ga. App. 661
• Decision Date: 16 July 1998
• Docket Number: No. A98A0765.,A98A0765.
• Parties: HARRIS v. MURRAY.
• Court: Georgia Court of Appeals

504 S.E.2d 736

233 Ga. App. 661

HARRIS v. MURRAY.

No. A98A0765.

Court of Appeals of Georgia.

July 16, 1998.

Reconsideration Denied July 30, 1998.

Certiorari Denied December 4, 1998.

Weinstock & Scavo, Michael Weinstock, John B. Levy, Atlanta, for appellant.

Beckmann & Pinson, William H. Pinson, Jr., William R. Dekle, Savannah, for appellees. Block, Lepore & Sanders, Matthew Lepore, amicus curiae.

POPE, Presiding Judge.

Laura S. Harris brought a medical malpractice action against Samuel D. Murray, Jr., M.D.,¹ and filed with her complaint an expert affidavit as required by OCGA § 9-11-9.1. The affidavit showed on its face that the expert executed it under oath before a notary public. In a subsequent deposition, the expert testified that the notary public whose jurat appeared on the affidavit did not administer an oath to him before he signed it. The trial court granted summary judgment in favor of Murray on the basis that Harris failed to comply with the affidavit requirement of OCGA § 9-11-9.1 because without an oath the document was not an affidavit. Harris claims the trial court erred in granting summary judgment to Murray because (1) Murray waived lack of compliance with OCGA § 9-11-9.1 as a defense by failing to raise the defense in his initial responsive pleading; and (2) the affidavit was in fact executed under oath.

1. Prior to discussing the application of OCGA § 9-11-9.1 to the facts of this case, we must first determine which version of the statute applies. The present action was filed on December 14, 1995. In 1997, the legislature amended § 9-11-9.1 with an effective date of July 1, 1997. Ga. L.1997, pp. 916, 919, § 2. Section 2 of the 1997 amendments provided that the 1997 act "shall apply only to actions filed on or after [the effective] date." Id. Accordingly, the legislature expressed its intention that the 1997 amendments apply prospectively.

In Vester v. Mug A Bug Pest Control, Inc., 231 Ga.App. 644, 500 S.E.2d 406 (1998), this Court recognized that § 9-11-9.1 is a statute governing procedural rather than substantive matters; that the effective date of the 1997 amendments to § 9-11-9.1 was July 1, 1997, and that the legislature provided in Section 2 of the amendments that the 1997 act "`shall apply only to actions filed on or after (the effective) date.'" Id. at 649, 500 S.E.2d 406. Despite the above-quoted language indicating prospective application of the 1997 amendments, Vester concluded that: "Such language is applicable only to laws that create substantive rights that cannot be given retroactive effect, because the parties are vested with substantive rights. See OCGA § 1-3-5; Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273 (1988); Pritchard v. Savannah Street, etc., R. Co., 87 Ga. 294, 13 S.E. 493 (1891). This Court has held that OCGA § 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. Kneip v. Southern Engineering, 260 Ga. 409, 410-411(4), 395 S.E.2d 809 (1990); Blackmon v. Thompson, 195 Ga.App. 589, 394 S.E.2d 795 (1990); Precision Planning v. Wall, 193 Ga.App. 331, 387 S.E.2d 610 (1989). As a procedural law, notwithstanding the legislative attempt to make the application prospective only, the reenactment has retroactive application." Id.

The above-quoted holding in Vester is contrary to long established law, subverts the clear legislative intent for prospective application of the 1997 amendments, and we therefore overrule it. The correct rule is that "where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. Pritchard v. The Savannah Street, etc., Co., 87 Ga. 294, 13 S.E. 493 (1891); Slaughter v. Culpepper, 35 Ga. 25 (1866)." (Emphasis supplied.) Polito v. Holland, 258 Ga. at 55, 365 S.E.2d 273. The legislature expressed its intention that the 1997 amendments to § 9-11-9.1 be given prospective application by plainly stating that the 1997 act "shall apply only to actions filed on or after [the effective] date." Ga. L.1997, pp. 916, 919, § 2. Vester incorrectly cited Pritchard, 87 Ga. 294, 13 S.E. 493 and Polito, 258 Ga. 54,365 S.E.2d 273 for the proposition that only statutes creating substantive rights can be given prospective application. In fact, these cases recognize the power of the legislature to give prospective application to procedural statutes by expressing a legislative intention to do so. Vester also misleadingly cites Kneip, 260 Ga. 409,395 S.E.2d 809; Blackmon, 195 Ga.App. 589,394 S.E.2d 795, and Precision Planning, 193 Ga.App. 331,387 S.E.2d 610, in support of its conclusion that the 1997 amendments apply retroactively. Although these cases correctly concluded that § 9-11-9.1 is procedural and that the statute applied retroactively, all three cases dealt with the 1987 version of the statute and its 1989 amendment. Contrary to the 1997 amendments to § 9-11-9.1, neither the 1987 version of the statute nor the 1989 amendment contained any expression by the legislature that they were to be given prospective application. Ga. L.1987, pp. 887, 889-890, § 3; Ga. L.1989, pp. 419, 421-422, § 3. Accordingly, the 1997 amendments to OCGA § 9-11-9.1 do not apply retroactively to this case; rather, the former version of the statute controls.

2. We find no merit in Harris' contention that Murray waived his defense under OCGA § 9-11-9.1.

Murray's defense under § 9-11-9.1 was that the expert affidavit, which appeared valid on its face when it was filed with the complaint, was subsequently shown not to be an affidavit because it was not given under oath. Murray raised this defense after the expert testified on deposition that no formal oath was administered to him when he executed the affidavit.

Prior to the 1997 amendments to § 9-11-9.1, former subsection (e) of the statute provided in pertinent part that: "Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15...." In Seely v. Loyd H. Johnson Constr. Co., 220 Ga.App. 719, 724, 470 S.E.2d 283 (1996), we construed former subsection (e) in a case where the malpractice plaintiff failed to file any document purporting to be the required expert affidavit with the complaint, and the malpractice defendant did not raise this failure as a defense in its initial responsive pleading. On these facts, we concluded that under the plain language of the statute, the defendant's failure to raise the lack of an affidavit in its initial responsive pleading was a waiver of the defense. Id. at 724, 470 S.E.2d 283.

The waiver holding in Seely is inapplicable to the present facts. Because Harris filed a document with the complaint which appeared on its face to be a valid expert affidavit in compliance with OCGA § 9-11-9.1, Murray initially had no reason to challenge the affidavit and, therefore, he had no duty under the statute to raise any § 9-11-9.1 defense in his initial responsive pleading to the complaint. When Murray subsequently deposed the expert, the expert testified that no formal oath was administered to him before he executed the affidavit. Upon making this discovery, Murray's first response was to file motions seeking dismissal or summary judgment on the complaint in which he raised the defense that Harris failed to file the required affidavit. Under these facts, there was no waiver of the § 9-11-9.1 defense. Because Murray acted diligently in raising the defense in the first pleading he filed after discovering evidence causing him to challenge the validity of the affidavit, he satisfied the statutory requirement that the defendant raise the failure to file the required affidavit "in its initial responsive pleading." OCGA § 9-11-9.1(e), (f); Phoebe Putney Mem. Hosp. v. Skipper, 226 Ga.App. 585, 586, 487 S.E.2d 1 (1997) (physical precedent), cert. granted by the Supreme Court and remanded to the Court of Appeals in unpublished order (1998).

This conclusion comports with our duty to construe the statute in a manner that gives effect to the intention of the legislature. City of Roswell v. City of Atlanta, 261 Ga. 657, 410 S.E.2d 28 (1991). Although the statute does not plainly address its application to the present facts, the legislature clearly intended to allow the defendant in a malpractice case to raise the failure to file the required expert affidavit at the defendant's first opportunity. Murray's first opportunity to file a responsive pleading raising the defense was not in his initial responsive pleading after the complaint, but in his initial responsive pleading after the deposition in which it was revealed that no formal oath was administered. To construe the statute under these facts to mean that defendants waive the defense unless they preserve it by raising it in their initial responsive pleading to the complaint would require defendants to universally raise possible defenses in response to the complaint without any factual basis at the time for doing so. The legislature could not have intended this result because it would place defendants attempting to preserve the defense in violation of the requirements of honesty and good faith in pleading and would subject them to possible abusive litigation claims. North Ga. Production Credit Assn. v. Vandergrift, 239 Ga. 755, 763, 238 S.E.2d 869 (1977); OCGA § 51-7-80 et seq.

3. Harris asserts that, contrary to the trial court's finding, the expert affidavit was given under oath. We agree with this assertion.

"In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be...