Walker v. Cromartie

O.C.G.A. § 9-11-9.1-requiring an expert affidavit for a professional negligence claim-is not unconstitutional as applied to indigent litigants.

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Appellants Joel and Patricia Walker filed an action for legal malpractice, ordinary negligence, and breach of fiduciary duty against appellees for legal work appellees performed in the case All Fleet Refinishing, Inc. v. West Georgia National Bank , 280 Ga. App. 676 634 SE2d 802 2006. Appellants did not file an expert affidavit with their complaint as required by OCGA § 9-11-9.1 for a professional negligence claim.1 As a result, appellees filed a partial motion to dismiss. In response, appellants alleged that OCGA § 9-11-9.1 was unconstitutional as applied to indigent litigants. A hearing was held on the dismissal issue and, because the trial court received evidence at the hearing, the partial motion to dismiss was converted into a partial motion for summary judgment. On July 16, 2009, the trial court granted the partial motion for summary judgment, finding the statute was constitutional and dismissing appellants’ legal malpractice claim.2 We now affirm. 1. Appellants argue it was error for the trial court to grant a partial motion for summary judgment because no such motion was filed. However, the trial court received evidence during the dismissal hearing. Therefore, the partial motion to dismiss was properly converted to a partial motion for summary judgment pursuant to OCGA § 9-11-12 b. There was no error.

2. Appellants contend that OCGA § 9-11-9.1 is unconstitutional because the expert affidavit requirement prohibits indigent plaintiffs from pursuing their actions for professional negligence due to the costs of procuring an expert affidavit, thereby violating their due process rights, equal protection rights, and their right to trial. We disagree. Absent a showing of state action, appellants cannot sustain a claim that OCGA § 9-11-9.1 interferes with their right to due process, their right to equal protection or their right to trial. Peterson v. Columbus Medical Center Foundation , 243 Ga. App. 749 3 533 SE2d 749 2000.

Walker v. Cromartie

O.C.G.A. § 9-11-9.1-requiring an expert affidavit for a professional negligence claim-is not unconstitutional as applied to indigent litigants.

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