Cheeley v. Henderson , 261 Ga. 498 ( 1991 )

Smith, Presiding Justice.

We granted a writ of certiorari to the Court of Appeals in Cheeley v. Henderson, 197 Ga. App. 543 (398 SE2d 787) (1990), and we reverse.

Mr. Henderson filed a legal malpractice action against the Cheeleys, but Mr. Henderson’s requisite expert’s affidavit failed to “set forth specifically at least one negligent act” as required by OCGA § 9-11-9.1 (a). The Cheeleys’ responsive pleadings adequately raised the affidavit’s deficiency, the Cheeleys’ motion for summary judgment based on the insufficiency of the affidavit was denied by the trial court, and the Court of Appeals affirmed the trial court’s denial.

1. The accepted rule in Georgia is that our appellate courts apply the law as it exists at the time of our judgment, rather than the law at the time the judgment was rendered by the lower court, as long as no vested rights under the previous law will be impaired, City of Valdosta v. Singleton, 197 Ga. 194, 197 (28 SE2d 759) (1944); Peoples Bank v. N. C. Nat. Bank, 230 Ga. 389, 391 (197 SE2d 352) (1973); therefore, we do not need to decide whether the 1989 amendment to OCGA § 9-11-9.1 (e) was merely a codification of the existing law.¹

2. Subsection (e) of OCGA § 9-11-9.1 demands that we reverse this case. The contemporaneously filed affidavit failed to specify any negligent act or omission as required by OCGA § 9-11-9.1 (a); the responsive pleading adequately raised the insufficiency issue, and cure by amendment is prohibited under these facts. OCGA § 9-11-9.1 (e).

3. This is not a case in which the plaintiff had the correct affidavit and inadvertently failed to attach it to the complaint. St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989). This case involves the “misinterpretation of OCGA § 9-11-9.1 (a). . . .” Cheeley, 197 Ga. App. at 546. Because of the “misinterpretation,” the requisite affidavit failed to comply with OCGA § 9-11-9.1 (a). Non-compliance with the Civil Practice Act is a basis for dismissing a plaintiff’s action, OCGA § 9-11-41 (b), but the state’s liberal amendment policy, OCGA § 9-11-15, typically allows amendments. However, according to OCGA § 9-11-9.1, the contemporaneous filing requirement is mandatory, and the General Assembly made it apparent when it enacted subsection (e) which provides that failure to comply with the contemporaneous filing requirements

cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.

The “requisite affidavit” was not filed contemporaneously with the complaint. The first affidavit failed to “set forth specifically at least one negligent act” and the trial court erred in denying the Cheeleys’ motion for summary judgment and the Court of Appeals erred in affirming the trial court.

Judgment reversed.

All the Justices concur, except Weltner, Hunt, and Fletcher, JJ., who dissent.

1 In Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988), this Court rejected the idea that a defective filing under the mandatory contemporaneous filing requirement could be cured by amendment when we stated that it could be cured by “dismiss[ing] the pending action, and filling] a renewed action. . . .”