Fortson v. Freeman
313 Ga. App. 326
| Ga. Ct. App. | 2011Background
- Fortson, pro se, appeals sixth time in a real estate dispute involving former counsel Freeman and ATC.
- Fortson alleges legal-malpractice, breach of contract, injunction relief, constructive trust, negligent misrepresentation, fraud, and RICO.
- Trial court dismissed for failure to file an expert affidavit under OCGA § 9-11-9.1(a).
- Allegations center on Freeman/ATC's legal advice and actions in underlying litigation and bankruptcy settlement with Gonzaleses.
- Settlement resolved all issues including fees against Hardwick; on appeal, court affirmed dismissal for lack of 9-11-9.1 compliance.
- Court distinguishes Labovitz but holds claims are professional negligence requiring 9-11-9.1 affidavit; fraud claim inadequately pled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OCGA 9-11-9.1 affidavit required for malpractice claim | Fortson asserts malpractice claims against Freeman/ATC. | 9-11-9.1 requires expert affidavit; without it, dismissal is proper. | Dismissal affirmed for failure to file required affidavit. |
| Labovitz applicability to negligence claims | Labovitz exempts intentional acts from affidavit requirement. | Case does not apply as claims are negligent, not intentional. | Labovitz not controlling; claims fall under 9-11-9.1. |
| Fraud claim sufficiency and particularity | Fraud claim supported by misrepresentations by Freeman. | Fraud allegations lack particular facts to state a claim. | Fraud claim inadequately pled; barred under 9-11-9.1 and case law. |
Key Cases Cited
- Mendoza v. Pennington, 239 Ga. App. 300 (Ga. App. 1999) (failure to comply with 9-11-9.1 results in dismissal)
- Abe Engineering v. Griffin, Cochran & Marshall, 212 Ga. App. 586 (Ga. App. 1994) (9-11-9.1 compliance required for malpractice pleadings)
- Jordan, Jones & Goulding v. Balfour Beatty Constr., 246 Ga. App. 93 (Ga. App. 2000) (affidavit requirement for professional malpractice actions)
- Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896 (Ga. App. 2007) (fraud allegations must state particular facts)
- Labovitz v. Hopkinson, 271 Ga. 330 (Ga. 1999) (intentional acts exempt from affidavit requirement; distinguishes negligent claims)
- Shuler v. Hicks, Massey & Gardner, LLP, 280 Ga. App. 738 (Ga. App. 2006) (amended fraud claim viability under certain circumstances)