Turner v. Kitchings, A91A0605
| Decision Date | 04 June 1991 |
| Docket Number | No. A91A0605,A91A0605 |
| Citation | 406 S.E.2d 280,199 Ga.App. 860 |
| Parties | TURNER v. KITCHINGS. |
| Court | Georgia Court of Appeals |
John V. Lloyd, Savannah, for appellant.
Richard D. Phillips, Ludowici, for appellee.
Alleging a claim for legal malpractice, appellant-plaintiff filed suit against appellee-defendant. Appellee answered and subsequently moved for summary judgment, relying upon his own affidavit wherein he averred that his "degree of care and diligence in the handling of the case for [appellant] was that degree of care and skill customarily employed by attorneys under the same conditions and like surrounding circumstances." After conducting a hearing, the trial court granted summary judgment in favor of appellee and appellant appeals from that order.
Appellee's own affidavit was sufficient to shift the evidentiary burden to appellant and, if insufficiently opposed, it authorized the grant of summary judgment in appellee's favor. See Kellos v. Sawilowsky, 254 Ga. 4, 325 S.E.2d 757 (1985). In opposition to appellee's motion, appellant relied entirely upon the expert affidavit that had been attached to his complaint. However, an affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56. Unlike OCGA § 9-11-56, "[n]othing in the affidavit requirements in OCGA § 9-11-9.1 demands that the standard of care be set forth, that a plaintiff's expert state he is familiar with the appropriate standard of care, or that the affiant detail the manner in which the defendant deviated from that standard." 0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga.App. 286, 287(1), 378 S.E.2d 708 (1989). Assuming, without deciding, that the expert affidavit that was attached to appellant's complaint was sufficient to satisfy the pleading requirements of OCGA § 9-11-9.1, it was not otherwise sufficient to satisfy the above-noted evidentiary requirements of OCGA § 9-11-56. "[A] malpractice plaintiff as respondent on summary judgment cannot prevail on the motion, where the defendant by the content of his expert affidavit has carried his burden of proof, merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant's deviation therefrom...." 0-1 Doctors Memorial Holding Co. v. Moore, supra at 287(1), 378 S.E.2d 708. Since,...
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Rudd v. Paden
...breast of the court until entry of final judgment.19 Judgment reversed. RUFFIN, C.J., and SMITH, P.J., concur. 1. Turner v. Kitchings, 199 Ga.App. 860, 406 S.E.2d 280 (1991). 2. See Jones v. Orris, 274 Ga.App. 52, 56(2), 616 S.E.2d 820 (2005); Hailey v. Blalock, 209 Ga. App. 345, 347(2), 43......
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Pope v. Department of Human Resources
...the fact that their attorney conceded below that there was no support for their professional negligence claim. See Turner v. Kitchings, 199 Ga.App. 860, 406 S.E.2d 280 (1991). 2. Defendants were also entitled to summary judgment on plaintiffs' general negligence claim. Their arguments relat......
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Hailey v. Blalock
...requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56. Turner v. Kitchings, 199 Ga.App. 860, 406 S.E.2d 280 (1991). The concern here is with the latter, for if the affidavit cannot survive summary judgment, then its sufficiency for the t......
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Lucky Capital Mgmt., LLC v. Miller & Martin & Martin, PLLC
...requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56." Turner v. Kitchings, 406 S.E.2d 280, 281 (Ga. App. 1991). Thus, we are not bound to find a dispute of material fact merely because Lucky provided an affidavit from a legal malpracti......