Williams v. Murrell

• Decision Date: 22 February 2019
• Docket Number: A19A0559
• Citation: 348 Ga.App. 754,824 S.E.2d 638
• Court: Georgia Court of Appeals
• Parties: WILLIAMS v. MURRELL et al.

348 Ga.App. 754

824 S.E.2d 638

WILLIAMS

v.MURRELL et al.

A19A0559

Court of Appeals of Georgia.

February 22, 2019

Rouse & Copeland, Christopher L. Rouse, for appellant.

Nall & Miller, Robert L. Goldstucker, Patrick N. Arndt ; Hunter Maclean Exley & Dunn, Wade W. Herring II, Heather H. Lundy, for appellees.

Barnes, Presiding Judge.

Yolanda Williams sued John M. Murrell, D. P. M., and Midtown Foot Clinic, P. C., alleging in her amended complaint that the defendants had defrauded her by billing her for foot surgeries that were never performed. The trial court dismissed Williams’s fraud claims based on her failure to file an expert affidavit with her complaint pursuant to OCGA § 9-11-9.1. Because Williams’s fraud claims were grounded in allegations of intentional misconduct, those claims did not need to be accompanied by an expert affidavit, and we therefore reverse the judgment.

The record reflects that Williams was a patient of Dr. Murrell, a podiatrist, at the Midtown Foot Clinic. In October 2017, Williams sued Dr. Murrell and the Midtown Foot Clinic, seeking the production of her medical records, punitive damages, and attorney fees. After receiving and reviewing the records from the defendants during the litigation, Williams amended her complaint to add two claims against the defendants in which she alleged that they had defrauded her by billing her for foot surgeries that were never performed.¹ Williams did not file an expert affidavit with her original or amended complaint.

After Williams filed her amended complaint, the defendants submitted a letter brief² to the trial court asserting that Williams’s fraud claims implicated professional skill and judgment, necessitating the filing of an expert affidavit under OCGA § 9-11-9.1,³ and that the amended complaint was defective because no affidavit had been filed. Williams responded by filing a "Motion for Summary Judgment as to OCGA § 9-11-9.1 Defense" in which she sought a ruling that she was not required to file an expert affidavit under OCGA § 9-11-9.1 based on the fraud allegations raised in her amended complaint. The defendants opposed Williams’s motion and filed a "Cross Motion for Summary Judgment," asserting that Williams’s failure to attach an OCGA § 9-11-9.1 affidavit to her amended complaint required the dismissal of her fraud claims and that her claim for the production of her medical records was now moot because the records had been produced.

The trial court thereafter entered its order dismissing Williams’s fraud claims, ruling on the party’s self-styled cross-motions for summary judgment in the defendants’ favor.⁴ The trial court stated:

Plaintiff does not allege that Defendant Murrell billed her for surgeries not performed, but rather she alleges that Defendant Murrell did not perform the procedures for which he billed her. The record reflects, and Plaintiff concedes, that Defendant Murrell performed various procedures on Plaintiff’s feet on October 5, 13, and 18, 2016. Thus, whether Defendants committed fraud in billing Plaintiff for the procedures she claims were not done turns on a determination of what, or to what extent, procedures actually were performed.

As neither Plaintiff nor the Court have professional knowledge in the area of podiatric surgery, this critical issue requires the exercise of professional knowledge and judgment. [Cit.] Therefore, an expert affidavit under OCGA § 9-11-9.1 is required, and Plaintiff’s failure to file such an affidavit necessitates the dismissal of her fraud claims.

This appeal by Williams followed.

1. Williams contends that because she alleged claims for fraud in her amended complaint rather than claims for professional malpractice, the trial court erred in dismissing those claims on the ground that she failed to file an expert affidavit under OCGA § 9-11-9.1. We agree.

(a) At the outset, we note that the defendants call attention to the fact that in her brief, Williams expressly enumerates as error the trial court’s denial of her "Motion for Summary Judgment as to OCGA § 9-11-9.1 Defense," but not the trial court’s grant of the defendants’ "Cross Motion for Summary Judgment." Given this omission, the defendants contend that Williams has abandoned any argument that the trial court’s ruling in favor of the defendants on the expert affidavit issue was erroneous. See Kitchin v. Reidelberger , 311 Ga. App. 135, 137 (4), 714 S.E.2d 361 (2011) ("An appealing party ... may not use its brief to expand its enumerations of error by arguing the incorrectness of a trial court ruling not mentioned in the enumerations of error."). We are unpersuaded.

OCGA § 5-6-48 (f) provides in relevant part:

Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that ... the enumeration of errors fails to enumerate clearly the errors sought to be reviewed ...

"[T]he legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate." Felix v. State , 271 Ga. 534, 538, 523 S.E.2d 1 (1999). Furthermore, pursuant to OCGA § 5-6-30, the Appellate Practice Act is to be "liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein."

In the present case, Williams’s notice of appeal shows that she is appealing the judgment entered on the parties’ cross-motions in which the trial court dismissed her fraud claims for failure to include an OCGA § 9-11-9.1 expert affidavit. And, in the "Enumeration of Errors" section of her brief, Williams expressly asserts that "Georgia does not require an expert’s affidavit to accompany a complaint alleging fraud." In light of the aforementioned statutory directives, we conclude that when the notice of appeal, the record, and Williams’s enumerations of error are read together, it is clear that Williams intended to appeal the trial court’s judgment dismissing her fraud claims and to claim as error the trial court’s determination that an OCGA § 9-11-9.1 expert affidavit was required to support those claims. See Strickland v. State , 165 Ga. App. 197, 199 (2), 300 S.E.2d 537 (1983) (appellate courts have a "duty to consider what it perceives to be the substance of the enumerations"). We now turn to that claim of error.

(b) "Pursuant to OCGA § 9-11-9.1 (a), a claim alleging medical malpractice must be accompanied by an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." (Citation and punctuation omitted.) Oduok v. Fulton DeKalb Hosp. Auth. , 340 Ga. App. 205, 206-207 (1), 797 S.E.2d 133 (2017). Notably, "[u]nlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action." Holmes v. Lyons , 346 Ga. App. 99, 102 (1), 815 S.E.2d 252 (2018). As we have explained,

the purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.

(Citation and punctuation omitted.) Sawyer v. DeKalb Med. Center , 234 Ga. App. 54, 56 (2), 506 S.E.2d 197 (1998). Therefore,

[n]oncompliance with OCGA § 9-11-9.1 (a) is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim. OCGA §§ 9-11-9.1 (e) ; 9-11-12 (b) (6). Summary judgment, which addresses the merits, is not the proper vehicle to challenge the pleading, of which the affidavit is a part.

Williams v. Hajosy , 210 Ga. App. 637, 638 (1), 436 S.E.2d 716 (1993). See Hodo v. Gen. Hosp. of Humana , 211 Ga. App. 6, 8 (2), 438 S.E.2d 378 (1993).

Here, the parties styled their cross-motions on the expert affidavit issue as motions for summary judgment, and the trial court ruled in favor of the defendants. "But pleadings, motions, and orders are construed according to their substance and function and not merely by nomenclature." Forest City Gun Club v. Chatham County , 280 Ga. App. 219, 220, 633 S.E.2d 623 (2006). Given that OCGA § 9-11-9.1 imposes only a pleading requirement on a plaintiff, "we will address the merits of this appeal as if the trial court had dismissed [Williams’s fraud claims for failure to state a claim] rather than granted summary judgment [to the defendants]." (Citation and punctuation omitted.)

Bala v. Powers Ferry Psychological Assoc. , 225 Ga. App. 843, 844 (1), 491 S.E.2d 380 (1997). See Druckman v. Ethridge , 198 Ga. App. 321, 321 (1), 401 S.E.2d 336 (1991). In doing so, we are mindful that

[w]hen the sufficiency of a plaintiff’s complaint to state a claim for relief is questioned by a motion to dismiss, it is to be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.

(Citation and punctuation omitted.) Bowen v. Adams , 203 Ga. App. 123, 123-124, 416 S.E.2d 102 (1992). As explained below, application of this standard leads us to conclude that the trial court erred in dismissing Williams’s fraud claims for failure to file an OCGA § 9-11-9.1 expert affidavit.

" OCGA § 9-11-9.1, by its very language, is applicable only to those professional malpractice actions alleging professional negligence." Labovitz v. Hopkinson , 271 Ga....