Padgett v. Crawford

189 Ga. App. 568 (1988) 376 S.E.2d 724

PADGETT
v.
CRAWFORD.

77797.

Court of Appeals of Georgia.

Decided December 5, 1988.

Carlton Padgett, Sr., pro se.

A. Martin Kent, for appellee.

DEEN, Presiding Judge.

The appellant, Carlton Padgett, commenced this legal malpractice action against the appellee. The trial court granted the appellee's motion to dismiss, on the basis that Padgett had not filed an affidavit of an expert setting forth the alleged negligence, and this appeal followed. Held:

OCGA § 9-11-9.1 (a) provides that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint 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." Padgett contends that this Code section applies only to medical malpractice actions, but this court has already decided that issue otherwise. Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988).

In this case, following the appellee's motion to dismiss Padgett's complaint for having filed no affidavit, the trial court gave Padgett 10 days in which to file such. Padgett submitted an affidavit within that time, but the affidavit neither states the qualifications of the affiant nor provides the affiant's opinion as to the reasonableness or skill of the defendant attorney's conduct. The trial court properly found this affidavit to be inadequate and dismissed the action.

Judgment affirmed. Carley and Sognier, JJ., concur specially.

SOGNIER, Judge, concurring specially.

As I agree with the position of the dissent in St. Joseph's Hosp. v. Nease, 189 Ga. App. 239 (375 SE2d 241) (1988), I do not view the failure to file the required affidavit with the complaint, as required by OCGA § 9-11-9.1, as an amendable defect. In my view, therefore, appellant's failure to file the affidavit with the complaint necessitated dismissal of the complaint by the trial court. Since it is well established that a judgment which is right for any reason should be affirmed, Waco Fire &c. Ins. Co. v. Roberson, 186 Ga. App. 38, 39 (366 SE2d 376) (1988), I concur in the judgment reached by the majority.

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