Labovitz v. Hopkinson

• Decision Date: 13 July 1999
• Docket Number: No. S98G1141.,S98G1141.
• Citation: 271 Ga. 330,519 S.E.2d 672
• Parties: LABOVITZ et al. v. HOPKINSON.
• Court: Georgia Supreme Court

519 S.E.2d 672

271 Ga. 330

LABOVITZ et al. v. HOPKINSON.

No. S98G1141.

Supreme Court of Georgia.

July 13, 1999.

Troutman Sanders, Daniel S. Reinhardt, C. LeeAnn McCurry, Atlanta, for appellants.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Atlanta, for appellee. BENHAM, Chief Justice.

Appellants, an attorney and his former law firm, represented appellee Helen Hopkinson in a divorce proceeding which resulted in the entry of a judgment and decree of divorce on November 4, 1994. On October 30, 1996, appellee, acting pro se, filed a complaint seeking damages for professional malpractice allegedly committed by her attorneys during their representation of her in the divorce proceeding. Appellee alleged that appellants had negligently failed to obtain accurate sworn information related to her estranged husband's income and financial circumstances; negligently represented to her that they had obtained such information when they had not; failed to correctly advise her of or affirmatively misrepresented her husband's income and finances; and advised, recommended, and pressured her to accept a settlement substantially below the amount to which she would have been entitled.

Appellee did not file contemporaneously with her complaint the expert affidavit required in an action for damages alleging professional malpractice (see OCGA § 9-11-9.1 (1989)),¹ but invoked the statutory 45-day extension of time by asserting that the complaint was filed within ten days of the expiration of the statute of limitation and that an expert's affidavit could not be prepared.² Appellee did not file the required affidavit within the 45-day period, and the trial court denied her pro se motion for a six-month extension of time to obtain the affidavit. After the expiration of the 45-day period, appellee, still acting pro se, amended her complaint to seek damages from appellants for fraud and misrepresentation which purportedly occurred during their representation of her in the divorce proceedings.³ The trial court granted appellants' motion to dismiss the amended complaint for failure to state a claim. The Court of Appeals affirmed the dismissal of the legal malpractice claim since appellee had not filed an expert affidavit, but reversed the dismissal of the amendment to the complaint. Hopkinson v. Labovitz, 231 Ga.App. 557, 499 S.E.2d 338 (1998). We granted appellants' petition for a writ of certiorari, asking what effect, if any, the doctrine of res judicata would have on a non-malpractice claim arising out of the same acts as a malpractice claim which has been dismissed for failure to file the necessary expert affidavit.

1. The trial court did not err when it dismissed appellee's professional malpractice claims since appellee failed to file an expert affidavit within the 45-day statutory extension and the trial court found that appellee had not presented the "good cause" necessary to justify a further extension of time in which to file the required affidavit. Archie v. Scott, 190 Ga.App. 145(4), 378 S.E.2d 182 (1989).⁴

2. We now address whether the doctrine of res judicata authorizes the dismissal of the remainder of appellee's amended complaint. Res judicata is defined in OCGA § 9-12-40 as follows:

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

The doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously-adjudicated action. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864(1), 463 S.E.2d 5 (1995). In order for res judicata to bar a subsequent action, it must be established that an identity of parties and subject matter exist between the two actions, and that a court of competent jurisdiction entered an adjudication in the earlier action. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565(1), 458 S.E.2d 826 (1995). Appellee, the party against whom the res judicata defense is asserted, concedes that the case at bar involves identity of parties and subject matter. Our focus, then, is on appellants' contention that appellee's failure to file an expert affidavit within the statutory 45-day period constituted, by operation of law, an adjudication on the merits in the professional malpractice action upon the expiration of the 45-day period, which adjudication barred appellee from subsequently amending her complaint.

OCGA § 9-11-9.1(b) (1989) does not state that the failure to file an affidavit within the 45-day statutory extension will result in the complaint being dismissed by operation of law. Compare, e.g., OCGA § 9-2-60(b) ("Any action ... in which no written order is taken for a period of five years shall automatically stand dismissed...."); OCGA § 17-7-170(b) (a person not tried for a crime within a specified period of time of the filing of a demand for speedy trial "shall be absolutely discharged and acquitted ...");⁵ OCGA § 18-4-63(b) ("the garnishment proceeding based on that affidavit [on which no summons of garnishment has been issued for two years] shall automatically stand dismissed."); OCGA § 34-9-105(b) ("if the court does not hear the case within 60 days... the decision of the board shall be considered affirmed by operation of law ..."); and OCGA § 50-15-2 (if a bond ordered by the court in a public lawsuit is not filed, "the opposing party or parties or intervenors shall be dismissed by operation of law ...") (emphases supplied). Instead, OCGA § 9-11-9.1(b)(1989) authorizes a trial court to grant to a plaintiff who presents good cause therefor an extension of time beyond the 45-day statutory extension. The trial court is vested with broad discretion to determine if "good cause" exists for a further extension, and the exercise of that discretion is not subject to reversal on appeal unless manifestly abused. Piedmont Hosp. v. Draper, 205 Ga.App. 160(2), 421 S.E.2d 543 (1992). While appellee sought an additional extension prior to the expiration of the 45-day period and was denied, § 9-11-9.1(b) (1989) does not, by its terms, limit a subsection (b) plaintiff to request a "good cause" extension of time within that 45-day period. See Brake v. Mintz, 193 Ga.App. 662, 664, 388 S.E.2d 715 (1989) ("OCGA § 9-11-9.1 ... does not distinguish between motions made within or made without the 45-day extension period."). In light of the lack of statutory language mandating automatic dismissal of a subsection (b) plaintiff's professional malpractice complaint if an expert affidavit is not filed by the expiration of the 45-day extension, and the exercise of discretion statutorily bestowed on a trial court faced with a subsection (b) plaintiff, we conclude that appellee's failure to file an expert affidavit before the 45-day statutory extension expired did not result in an automatic adjudication on the merits of appellee's professional malpractice claim. Accordingly, application of the doctrine of res judicata cannot serve as the basis for dismissing appellee's amended complaint.

3. The question then presented is the correctness of the Court of Appeals' determination that appellee's amendment to her complaint was incorrectly dismissed by the trial court because the amendment presented claims for which no expert affidavit was required. Hopkinson v. Labovitz, supra, 231 Ga.App. at 559, 499 S.E.2d 338. The Court of Appeals reached its conclusion by reasoning that the § 9-11-9.1 affidavit requirement is applicable only to that subset of professional malpractice actions which allege a negligent act or omission or breach of contract for failure to perform professional services in accordance with the professional obligation of care, and appellee's allegations of fraud did not call into question the professional standard of care applicable to attorneys since it is improper for anyone to defraud another person. Id. We agree with the Court of Appeals that OCGA § 9-11-9.1, by its very language, is applicable only to those professional malpractice actions alleging professional negligence.

OCGA § 9-11-9.1(a) (1989) requires an expert affidavit to be filed "[i]n any action for damages alleging professional malpractice," and the affidavit to "set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." The appellate courts of Georgia have interpreted the statute as requiring an expert affidavit only in professional negligence actions. Barr v. Johnson, 189 Ga.App. 136, 137, 375 S.E.2d 51 (1988) (the 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."). See also Jordan, Jones & Goulding v. Wilson, 197 Ga.App. 354(2), 398 S.E.2d 385 (1990); Tante v. Herring, 264 Ga. 694, 695, 453 S.E.2d 686 (1994) (a claim for breach of fiduciary duty against a lawyer "is not one for professional malpractice based on negligence involving [the lawyer's] performance of legal services and, therefore, no expert affidavit is required..."); Lutz v. Foran, 262 Ga. 819(2), 427 S.E.2d 248 (1993) ("A professional malpractice action is merely a professional negligence action ..."). Cf. Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436, 383 S.E.2d 867 (1989); Richmond Leasing Co. v. Cooper, Cooper &c., 207 Ga.App. 623(1), 428 S.E.2d 603 (1993) (affidavit required when clear and palpable case of professional negligence alleged).

When § 9-11-9.1 is construed as applicable only to actions alleging professional negligence, the appellate courts have held that it is unnecessary to file an expert affidavit with a complaint filed against a professional if the complaint alleges the commission of an injurious ...