Hodge v. Jennings Mill, Ltd., s. A94A1669
| Decision Date | 02 November 1994 |
| Docket Number | A94A1676,Nos. A94A1669,s. A94A1669 |
| Citation | 215 Ga.App. 507,451 S.E.2d 66 |
| Parties | HODGE et al. v. JENNINGS MILL, LTD. et al. JENNINGS MILL, LTD. et al. v. HODGE. |
| Court | Georgia Court of Appeals |
Bondurant, Mixson & Elmore, Emmett J. Bondurant, Michael B. Terry, for appellants.
O. Hale Almand, Roy W. Griffis, Jr., for appellees.
Plaintiffs, Jennings Mill, Ltd. ("Jennings Mill"), and its general partner and limited partners brought an action against its former counsel, defendant, G. Marcus Hodge and other principals of the law firm Fortson, Bentley & Griffin ("FBG"), to recover damages arising from defendant's conduct in the handling of the sale of the Jennings Mill Country Club to a third-party purchaser, J.M. Athens, Inc. ("Athens"). The complaint alleges that FBG, in fact, represented both Jennings Mill and Athens in the transaction. The complaint originally sought damages on three alternative legal theories: breach of the contract of representation, breach of fiduciary duty, and fraud and was filed without an OCGA § 9-11-9.1 affidavit. Defendants raised the failure to include an OCGA § 9-11-9.1 affidavit in their answer and Jennings Mill subsequently amended its complaint by adding a fourth count denominated "Professional Malpractice" and filing therewith an OCGA § 9-11-9.1 affidavit. The fourth count was based on the same facts alleged in the initial complaint.
Having raised the failure to comply with OCGA § 9-11-9.1 in its initial responsive pleading, FBG moved to dismiss the complaint and the amended complaint for failure to submit an expert affidavit pursuant to OCGA § 9-11-9.1. Thereafter, the trial court entered an order denying the motion to dismiss with respect to Count 1 (breach of contract) and 3 (fraud), and granting the motion as to Count 2 (breach of fiduciary duty), insofar as it sounded in professional malpractice, and granting the motion as to Count 4 (professional malpractice.) This interlocutory appeal followed.
FBG contends that the trial court erred in denying its motion to dismiss the amended complaint in its entirety. In particular, it argues that expert testimony is essential to defending against the remaining claims of error asserted by Jennings Mill as they arise in the context of attorney-client relations with Jennings Mill and Athens.
OCGA § 9-11-9.1(a) provides: "In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which shall set forth at least one negligent act or omission claimed to exist and the factual basis for each such claim." (Emphasis supplied.) "This statute applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care." Barr v. Johnson, 189 Ga.App. 136, 137, 375 S.E.2d 51 (1988).
In Hughes v. Malone, 146 Ga.App. 341, 247 S.E.2d 107 (1978), this court held that a complaint seeking damages for an attorney's want of professional skill and diligence in the conduct of his client's business is a "malpractice claim," whether the negligent acts were wilful or negligent. Id. at 344-347, 247 S.E.2d 107. "Webster's Third International Dictionary defines 'malpractice' as 'a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them or that affects the public interest adversely; the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services or to those entitled to rely upon them.' " Gillis v. Goodgame, 199 Ga.App. 413, 415, 404 S.E.2d 815 (1991).
While misconduct by one who is a professional may take many forms,...
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...(citation and punctuation omitted).19 Hobbs, supra at 248, 786 S.E.2d 897 (citation omitted).20 Nash, supra ; Hodge v. Jennings Mill, 215 Ga.App. 507, 508, 451 S.E.2d 66 (1994) ("[T]he affidavit requirements of OCGA § 9–11–9.1 are limited to those claims for professional malpractice by negl......
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