Old Republic National Title Insurance Company “Old Republic” appeals the dismissal of its claim against attorney Scott Nathan and Attorney Title Services, Inc. “Attorney Title”, a corporation owned by Nathan. Old Republic argues that the trial court erred: 1 in holding that its complaint asserted a claim for professional malpractice and was therefore subject to dismissal for its failure to file an expert affidavit in accordance with OCGA § 9-11-9.11; 2 in concluding that, even absent the affidavit requirement, Old Republic’s claim was time-barred because it was subject to the four-year statute of limitations applicable to professional malpractice actions, as opposed to the six-year limitations period applicable to actions on a written contract; and 3 in failing to hold a hearing on the motion to dismiss before granting the same. Finding that Old Republic’s complaint asserted a claim for legal malpractice, we affirm. A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12 b 6. On appeal, an order granting a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless 1 the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and 2 the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. Accordingly, we construe the pleadings in the light most favorable to the losing party with the doubts resolved in its favor. Citation and punctuation omitted. Williams v. Alvista Healthcare Ctr. 2 So viewed, the record shows that on December 7, 2000, Appellees entered into a written “Approved Attorney Agreement” “the Agreement” with Old Republic. The Agreement identified “Scott L. Nathan, Attorney Title Services” as the “Approved Attorney” with whom Old Republic was contracting and contained the following recitations: WHEREAS, Approved Attorney has applied to Old Republic for appointment as an Approved Attorney , and WHEREAS, the parties hereto wish to enter into an agreement pursuant to which Old Republic directly or through its policy issuing agents will issue its title insurance commitments, policies and endorsements covering estates or interests in or liens upon real property situated in the State of Georgia based upon the services, title examinations and opinions of the Approved Attorney . . . ; Emphasis supplied. The Agreement further obligated Appellees “to maintain lawyers professional liability insurance for so long as any liability under this Agreement exists.”
In August 2003, Old Republic retained Appellees, subject to the terms of the Agreement, to perform a title search on certain real property the “Property” that Leroy and Brenda Farley had contracted to purchase. Based on the results of that search, Attorney Title then prepared a title insurance commitment for the Farleys, with Nathan signing the title commitment certification. The title examination revealed that in December 2000, the original owners of the Property from whom the Farleys were purchasing had conveyed approximately one-half acre of the original tract to Fulton County, via a right of way deed. While Attorney Title listed the right of way deed in the title insurance commitment it prepared, it nevertheless failed to exclude the acreage transferred to Fulton County from the legal description of the Property contained in the commitment. As a result, Old Republic, in reliance on the legal description of the Property contained in the title insurance commitment, issued to the Farleys a title insurance policy that included the acreage previously conveyed to Fulton County.
