ABE Engineering, Inc. v. Griffin, Cochran & Marshall

Jan 19, 1994
A93A1991
Versions:212 Ga. App. 586
443 S.E.2d 1
94 Fulton County D. Rep. 249
1994 Ga. App. LEXIS 372
Cooper, Judge.

Plaintiff corporation, appearing pro se through its president, brought this legal malpractice action against defendant attorneys arising from their representation of appellant in a civil matter. Defendant denied the material allegations of the complaint and raised the defense that plaintiff failed to file an expert affidavit as required by OCGA § 9-11-9.1 (a). Defendant subsequently moved to dismiss the complaint for failure to state a claim under OCGA §§ 9-11-9.1 (e) and 9-11-12 (b) (6). The trial court granted the motion and dismissed the complaint with prejudice. Plaintiff appeals.

Plaintiff argues the trial court erred in dismissing the complaint with prejudice. A complaint alleging professional malpractice must include an expert affidavit setting forth at least one negligent act or omission and the factual basis for each such claim. OCGA § 9-11-9.1 (a). “A complaint is subject to dismissal for failure to state a claim when the plaintiff fails to file an expert affidavit as required. OCGA § 9-11-9.1 (e). A dismissal for failure to state a claim is a dismissal on the merits. [Cit.]” Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993). In the instant case, plaintiff’s complaint set forth a cause of action for legal malpractice; however, it failed to file an expert affidavit with the complaint and, as such, its complaint was subject to dismissal for failure to state a claim. Since such a dismissal is a dismissal on the merits, the trial court properly dismissed the complaint with prejudice. See Lutz, supra at 824 (4); see also Howard v. Jonah, 208 Ga. App. 542 (1) (430 SE2d 833) (1993) (upholding dismissal under OCGA 9-11-9.1 with prejudice).

We also reject plaintiff’s contention that he should be excused from complying with the affidavit requirement because of his pro se status. See Kalustian v. McDonald, 194 Ga. App. 435 (390 SE2d 657) (1990); Frazier v. Merritt, 190 Ga. App. 832 (380 SE2d 495) (1989). Accordingly, the trial court did not err in dismissing the complaint with prejudice.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.