Hobbs v. Great Expressions Dental Ctrs. of Ga., P.C.

• Decision Date: 27 May 2016
• Docket Number: A16A0368
• Parties: Hobbs v. Great Expressions Dental Centers of Georgia, P.C.
• Court: Georgia Court of Appeals

337 Ga.App. 248

786 S.E.2d 897

Hobbs

v.Great Expressions Dental Centers of Georgia, P.C.

A16A0368

Court of Appeals of Georgia.

May 27, 2016

Philip H. Weener, Devin Bryan Phillips, Zain Nawroz Kapadia, Weener & Nathan, for Appellant.

Milton B. Satcher III, Owen, Gleaton, Egan, Jones & Sweeney, for Appellee.

McMillian, Judge.

Terry E. Hobbs, Sr., appeals following the dismissal of his complaint for failure to file an expert affidavit pursuant to OCGA § 9–11–9.1. We now affirm in part and reverse in part as more fully set forth below.

We review a trial court's ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true. Fortson v. Freeman , 313 Ga.App. 326, 326, 721 S.E.2d 607 (2011). The record shows that Hobbs filed a verified complaint against appellee Great Expressions Dental Centers of Georgia, P.C. (“Great Expressions”) asserting claims for breach of contract, fraud, breach of covenant of good faith and fair dealing, punitive damages, and attorney fees. Hobbs supported his claims by detailed allegations concerning the failure of Great Expressions' dentists to properly perform and complete implant and related dental procedures. Great Expressions answered and moved to dismiss Hobbs' complaint, arguing that Hobbs' claims sounded in professional negligence and therefore required an expert affidavit pursuant to OCGA § 9–11–9.1. The trial court granted Great Expressions' motion based solely on Hobbs' failure to comply with OCGA § 9–11–9.1.

On appeal, Hobbs argues that the trial court erred because his complaint does not assert a claim for professional malpractice and instead is based on Great Expressions' failure to “live up to its end of the bargain” by failing to provide Hobbs the services he paid for. However, the gist of Hobbs' breach of contract claim is that Great Expressions' dentists provided sub-standard care by negligently performing and failing to complete the services for which he paid. As our appellate courts have explained before, the expert affidavit requirement contained in OCGA § 9–11–9.1 (a) applies to “any action for damages alleging professional malpractice,” based on the failure to perform professional services in accordance with the applicable standard of care, including breach of contract claims.

Fortson , 313 Ga.App. at 328, 721 S.E.2d 607 (although complaint stated various causes of action, expert affidavit required because substance of complaint raised only claim for professional negligence); Hodge v. Jennings Mill, Ltd. , 215 Ga.App. 507, 509, 451 S.E.2d 66 (1994) (trial court erred by denying motion to dismiss breach of contract claim “to the extent it sounded in malpractice”); Crawford v. Johnson , 227 Ga.App. 548, 551 (2) (a), 489 S.E.2d 552 (1997) (Regardless of nomenclature, claim asserted by a plaintiff that is predicated on allegations “that the defendant-professional ... rendered negligent professional services” falls within the ambit of OCGA § 9–11–9.1 (a).). Accordingly, the trial court did not err by dismissing Hobbs' breach of contract claim based on his failure to support this claim with the expert affidavit required by OCGA § 9–11–9.1.

Hobbs also argues that an expert affidavit is not required to support a fraud claim.¹ Hobbs is correct that our appellate courts have repeatedly held that it is unnecessary to file an expert affidavit with a complaint asserting claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation. Labovitz v. Hopkinson , 271 Ga. 330, 334, 519 S.E.2d 672 (1999) ; Walker v. Wallis , 289 Ga.App. 676, 678, 658 S.E.2d 217 (2008) ; Murrah v. Fender , 282 Ga.App. 634, 635, 639...