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Smith v. Morris, Manning & Martin LLP

Noncompliance with the expert affidavit requirement does not render professional negligence actions void at their inception.

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David Smith and various other entities collectively, “Smith” sued Morris, Manning & Martin, LLP, and several attorneys collectively, “the law firm” for legal malpractice, slander, libel, tortious interference, breach of fiduciary duty, and breach of contract. The trial court subsequently dismissed the complaint for failure to comply with the expert affidavit requirement in OCGA § 9-11-9.1. In Smith v. Morris, Manning & Martin, LLP ,1 we affirmed the dismissal of Smith’s malpractice claims, but reversed as to the other claims after assuming, without deciding, that those claims alleged something other than professional negligence.2 Following remand, Smith amended his complaint to assert claims for intentional breach of contract, intentional breach of fiduciary duty, and fraud. He also dismissed his slander, libel, and tortious interference claims. The law firm moved for judgment on the pleadings, asserting that the remaining claims sound in professional negligence and, consequently, are barred by Smith’s failure to comply with OCGA § 9-11-9.1. The law firm also argued that Smith could not validly amend the original complaint. Although the trial court found that Smith properly amended his complaint, it granted the law firm’s motion for judgment on the pleadings.

In Case No. A03A1516, Smith appeals the trial court’s entry of judgment on the pleadings. The law firm cross-appeals in Case No. A03A2075, arguing that the trial court erred in finding that Smith validly amended his complaint. For reasons that follow, we affirm the ruling in Case No. A03A2075, but reverse the judgment in Case No. A03A1516.

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