Smith v. Morris, Manning & Martin, LLP , 264 Ga. App. 24 ( 2003 )

Smith, Chief Judge,

concurring specially.

I concur with the result reached by the majority opinion. I write separately to note my sympathy with the appellees’ contentions that appellants simply “recycled” their allegations by labeling them as intentional acts. After reviewing the original complaint and its amendments, in my opinion, the trial court may have had a sound basis for concluding that the newest allegations were either “virtually identical” or at least “substantially similar” to the professional malpractice claims previously dismissed. Nevertheless, like the majority, I cannot agree that the trial court correctly granted appellees’ motion to dismiss. In Labovitz v. Hopkinson, 271 Ga. 330 (519 SE2d 672) (1999), the Supreme Court of Georgia explicitly stated that “claims grounded on a professional’s intentional acts which allegedly resulted in injury to one with whom the professional had a professional relationship are not required to be accompanied by an expert affidavit.” Id. at 336-337. According to Labovitz, this construction of OCGA § 9-11-9.1 does not foster “an ‘end-run’ around the expert affidavit requirement.” Id. at 337. After several years of litigation, appellants managed to allege intentional acts of wrongdoing. Under Labovitz, an expert affidavit was not required, and dismissal was improper.

Decided November 6, 2003 Gray don W. Florence, Jr., for appellants. Seyfarth Shaw, John A. Sherrill, Stephen M. Parham, for appellees.

I am authorized to state that Judge Miller joins in this special concurrence.