Moritz v. Orkin Exterminating Co., Inc., No. A94A1661
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | McMURRAY; POPE, C.J., and SMITH |
| Citation | 215 Ga.App. 255,450 S.E.2d 233 |
| Parties | MORITZ et al. v. ORKIN EXTERMINATING COMPANY, INC. |
| Docket Number | No. A94A1661 |
| Decision Date | 07 October 1994 |
Page 233
v.
ORKIN EXTERMINATING COMPANY, INC.
Certiorari Denied Feb. 20, 1995.
[215 Ga.App. 257] Philip M. Casto, Christopher J. McFadden, Decatur, for appellants.
Decker & Hallman, Richard P. Decker, W. Winston Briggs, Atlanta, for appellee.
[215 Ga.App. 255] McMURRAY, Presiding Judge.
This is an action for damages predicated on several theories involving the alleged negligent inspection and application of pesticides [215 Ga.App. 256] to the home of plaintiffs Linda and Todd Moritz by employees of defendant Orkin Exterminating Company, Inc. on November 17, 1992. Plaintiffs filed a lawsuit on February 11, 1993 and defendant moved to dismiss that complaint for failure to attach an expert's affidavit pursuant to OCGA § 9-11-9.1. On April 6, 1993, plaintiffs voluntarily dismissed that original lawsuit.
A second complaint was filed on July 8, 1993, initiating the case sub judice and containing substantially the same allegations as the earlier complaint. The complaint filed to
Page 234
initiate this case does have attached the affidavits of two experts, a medical doctor and a certified pest control operator. Defendant moved to dismiss the present action maintaining that the absence of any expert affidavit attached to the complaint in the earlier action cannot be "cured" by the procedure followed by plaintiffs. Defendant's motion to dismiss was granted and plaintiffs appeal. Held:OCGA § 9-11-9.1(e) provides a general rule that "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...." OCGA § 9-11-9.1(e). Exceptions to this general rule where the complaint is filed in the last ten days of the period of limitation or where the plaintiff had an affidavit available prior to filing a complaint but failed to file it due to a mistake are not applicable in the case sub judice.
While defendant concedes that OCGA § 9-11-9.1(e) does not expressly prohibit the procedure followed by plaintiffs in this action, it contends that the general rule quoted above should be read as prohibiting plaintiffs...
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DeKalb County v. Post Apartment Homes, No. A98A2148.
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994); see also Porter v. Food Giant, 198 Ga.App. 736, 738(1), 402 S.E.2d 766 (1991). "Language in an ordinance wil......
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Monticello, Ltd. v. City of Atlanta, No. A97A1714.
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256, 450 S.E.2d 233 (1994). "`[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating t......
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City of Buchanan v. Pope, No. A96A0927
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). " '[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relat......
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Holmes v. Chatham Area Transit Authority, No. A98A1205.
...each part of the statute and to avoid constructions which render a portion of the statute mere surplusage." Moritz v. Orkin Exterm. Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). "`[A] statute must be construed in relation to other statutes of which it is a part, and all statutes rel......
-
DeKalb County v. Post Apartment Homes, No. A98A2148.
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994); see also Porter v. Food Giant, 198 Ga.App. 736, 738(1), 402 S.E.2d 766 (1991). "Language in an ordinance wil......
-
Monticello, Ltd. v. City of Atlanta, No. A97A1714.
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256, 450 S.E.2d 233 (1994). "`[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating t......
-
City of Buchanan v. Pope, No. A96A0927
...statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). " '[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relat......
-
Holmes v. Chatham Area Transit Authority, No. A98A1205.
...each part of the statute and to avoid constructions which render a portion of the statute mere surplusage." Moritz v. Orkin Exterm. Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). "`[A] statute must be construed in relation to other statutes of which it is a part, and all statutes rel......