*1 requests interrogatories. Appellee certain for admission and ob- concerning to six for jected requests plan admission the insurance employees distributed to GAC on the ground brochure merger clause the insurance contract rendered statements irrelevant, objected interrogatories, the brochure and about other claims for similar sought information denied reasons and profits coverage type policy earned from sale of under the issue, unduly Our burdensome. review the record discloses that disputed discovery request scope each either per- was outside the discovery sought or only appellant’s missible information relevant claim, punitive damages on the accordingly demand fraud Gray, Whisenaut v. no abuse of the trial court’s discretion. (1988). Ga. App.
Judgment Corley, J., J., C. P. McMurray, concur. affirmed. Decided October Rehearing denied November Martin,
Clarence L. appellant. Miller, Tatum, Tatum, & Simpson Scott, John M. Pearce H. appellee.
A90A1485, HENDERSON; A90A1486. CHEELEY et al. v. and vice
versa.
Sognier, Judge.
Robert Henderson brought a Cheeley, Joseph Cheeley, Jr., Cheeley Chandler, Robert Joseph & (hereinafter Cheeley, Jr., E. P.C. collectively referred to as “Cheeley”) seeking damages for arising matters out of its handling of Hender- Oaks, son’s Glen Cheeley’s Inc. The trial court denied motion for judgment, application granted and we interlocutory appeal. Henderson cross appeals from the denial motion for summary judgment. contends the trial court dismissing erred not Hen-
derson’s on the basis that affidavit filed there- comply with failed to with OCGA 9-11-9.1 because it did specify one act allegedly by Cheeley. or omission committed complaint, filed in December set forth detail the factual bases specified, claim “numerous Cheeley’s errors and representation omissions” him including, alia, inter Cheeley’s discovery failure to investigate conduct certain Oaks; claims asserted jurisdic- waiver of certain continuance, defenses, and its lack of failure to seek tional evidentiary trial, assert certain including failure to preparedness appellant of the trial to of the conduct entrusting and its objections; Jr., Cheeley, more appellant Joseph Cheeley rather than Robert attorney. experienced was the affidavit of Thomas
Attached to Henderson’s *2 Georgia. in Metzloff, practice to affidavit attorney an licensed knowledge personal and set forth it was made on the affiant’s stated professor including he is an qualifications, that associate the affiant’s University Professor Metzloff of School of Law. averred law Duke attorney specializing practicing and as an educator that as a both skill, care, ethics, standard of and dili- legal he was familiar with the Georgia possessed by attorneys gence normally and utilized represent litigation, the who clients commercial such as elsewhere in the between Henderson and Oaks. matters involved of with Henderson and his examination Based on his conversations transcripts proceedings, trial and other documents pleadings, the of my Prof. Metzloff averred that generated litigation, in that “[i]t by Cheeley] fell opinion representation the below that [of skill, care, diligence, of and that certain required the standard [Cheeley], set part including of those errors and omissions the Complaint, legal malpractice.” forth in the constituted January 28,1988, Cheeley In its asserted as the third answer filed Complaint comply to with the con- defense that fails “[Henderson’s] the precedent dition to the institution of this action and therefore of no effect and should be instant action null void and interroga- Ten Henderson served his second dismissed.” months later alia, Cheeley seeking, inter of tories on clarification the bases Cheeley responded third defense. that Professor Metzloff’s specificity by degree required to of affidavit failed meet the § (a). his and submitted 9-11-9.1 Henderson then amended Metzloff, by an the affiant elabo- amended affidavit Prof. origi- the of negligent rated on acts and omissions the complaint. nal (a) provides any damages alleg-
OCGA 9-11-9.1 “[i]n ing professional malpractice, required the shall to file with be competent testify, which expert an of an to affidavit negligent set act or specifically shall least one affidavit forth each such claim.” omission claimed to exist and basis factual notes, Cheeley correctly As is not set forth (Emphasis.supplied.) there any or omission Prof. Metzloff’s affidavit itself one act Cheeley, noth- by claimed committed have been ing provides require- of that OCGA 9-11-9.1 satisfaction of incorporation expert’s ment affidavit a reference Cheeley its third defense other documents. We also that insufficiency expert’s adequately raised the defense affidavit (b), compare Meek, Glaser v. purposes of OCGA 9-11-12 258 Ga. 912) (1988), and note furthermore that confu- defense, grounds interrogatory as to the for that an sion existed ad- presented been dressing the matter could have earlier than delay seen in the at bar. ten month case argument prior We need not here address Henderson’s that (e), (f), he was enactment of OCGA 9-11-9.1 entitled to amend expert’s comply affidavit correct the failure of (a). Nease, v. Joseph’s Hosp. But St. with OCGA 9-11-9.1 847) (1989). preamble In L. p. to Ga. Ga. 153 Legislature purpose creating the intended of the Act stated plaintiffs require particulars OCGA 9-11-9.1 was to to “set forth the Accordingly, claim.” the statute 'has been construed as having purpose preventing frivolous or unsustainable ac- Planning Wall, Precision 193 Ga. tions.
610) (1989); Greene, Housing Auth. Savannah v. 867) (1989), quoting Holding 0-1 Doctors Mem. Co. v. Moore, “The filing requirement protects professionals 9-11-9.1 subsection having they supported by unless defend lawsuits an *3 competent statute, to . testify. . . Under the failure to obtain [an] might complaint affidavit be a fatal defect. Failure to file it with the object an amendable defect because ‘Is the chief of amendment (Footnote omitted.) Joseph’s the correction of mistakes?’ St. [Cit.]” (b). (1) Hosp., supra at 154-155 brought malpractice
The record reveals that Henderson this ac- against complaint tion Cheeley precise which detailed and defi- acts or constituting nite omissions for which he was seeking recompense. complaint filed Henderson his less than six months after the effective date of OCGA 9-11-9.1 and more than Johnson, nine months Barr before court decided 51) (1988), reported appellate opinion the first court to applying construe OCGA 9-11-9.1 as to actions. It supported by opinion cannot be denied that Henderson’s suit was expert competent testify specific of an to that acts of had However, although correctly occurred. an ex- Henderson obtained affidavit, Barr, pert’s compare supra, misinterpreted he 9-11- OCGA § (a) 9.1 allowing incorporate by that reference into the required by affidavit the “one act or omission” the statute. Thus, necessary Henderson had the information under OCGA 9-11- (a) copy 9.1 complaint: just at the time he filed his that he failed paragraph complaint information from his 7 of paragraph Prof. Metzloff’s affidavit. any
We are not suggesting that OCGA 9-11-9.1 authorizes requirements incorpo- by filing an affidavit plaintiff to fulfill its those matters which must be by to other documents reference rates However, special given the circumstances within the affidavit. stated above, Joseph’s given holding St. as outlined this case (1) (b), Hosp., supra that because Henderson but, misinterpretation 9-11- to a an affidavit due obtained specific (a), negli- incorporate into the 9.1 failed affidavit itself complaint, Henderson’s gent and omissions detailed acts rectify proper. this mistake was amendment of his correctly Cheeley’s motion to dismiss Therefore, court denied trial complaint on this issue. by Cheeley denying trial court erred its motion contends the Cheeley on Henderson’s tort claims. interrogatory in his argues that because Henderson admitted answers allegations all of tortious conduct occurred on before June that filed after June 1987 resulted Henderson’s running argument on on its of limitation those claims. Based statute limitation, the statute that Henderson’s tort claims barred Cheeley summary judgment it on Henderson’s argues was entitled damages. punitive claim complaint, damages
In Henderson seeks to recover jury him in his for the verdict entered Oaks, premises litigation, leased that lost rent involved he from that verdict. He also appealing and the fees incurred alleged that the errors and omissions constituted misconduct, faith, [by Cheeley] disregard willful and a conscious “bad omissions, consequences of which for the acts and reason [its] general damages is entitled to recover for mental [Henderson] anguish damage reputation,” to his business and credit as well as attorney punitive damages. fees and that parties appeal to this the contract claims raised Further, apparent remain it that the viable. run
statute of limitation OCGA 9-3-33 has tort claims However, might injuries person. have asserted for argues properly the trial court denied mo- *4 inapplicable is here since all of the tort tion because OCGA 9-3-33 i.e., in complaint pertain injuries property, pecuniary claims Thus, period is applicable he limitation losses. asserts that year period forth in 9-3-31. four set OCGA § in long
“It this that a cause of action for has been the law state negligence or malpractice, alleging unskillfulness, sounds and, subject agreement, an is (agency) contract the case of oral a cause of limitation 9-3-25. four-year statute OCGA § [S]uch and, one-year (can) thus, subject also in tort be of action sound Thus, plaintiff a who two-year limitation of OCGA 9-3-33. and/or
547 alleges legal years bring tort, has two an action for (Citations years bring action for of four an breach contract.” v. omitted.) Frey, Ballard (3) (346 punctuation App. 179 Ga. 459 SE2d Cheeley’s
We reverse the trial court’s of denial motion for sum mary First, judgment allegations on this issue. in view of complaint (al seeking damages injury reputation to Henderson’s reputation) damages beit business and credit the mental alleged he suffered as result of bad anguish faith and wil misconduct, damages personal injuries, ful which are tort Powell, &c., Hamilton v. Goldstein (2) (306 App. 167 Ga. 340) 818) (1983) (1984), aff'd Ga. SE2d we cannot of Henderson’s characterization as contain only ing property damages. Accordingly, claims those generally Kilby v. Shep claims are barred OCGA 9-3-33. See herd, (1986). 742) App. 177 Ga. Second, our review Henderson’s discloses that with running per statute of limitation on the above damages injuries, only damages sonal remaining viable are resulting Cheeley’s alleged negligent those breach of duties im posed by Sha attorney-client employment. Compare contract of Co., v. piro Southern 518) Can (1988). App. 677 (365 SE2d unable cite and our research has not uncovered one single appellate opinion in Georgia in property damages stem ming from attorney-client a breach of an employment contract of have been treated property damage as tortious rather than contrac property damage. “Despite v. tual contrary dicta to the [Loftin Brown, 114) (1986) cases], like contract, a suit on a albeit for breach of the con Royal Harrington, tract.” Ga.
(1990). Accordingly, we find that the applicable statute of limitation 9-3-25, is set forth in OCGA Riddle v. See, not e.g., OCGA 9-3-31. Driebe, 153 Ga. App. (1980); Royal, supra Therefore, because the statute of limitation run all but claim, aspect the contractual Cheeley was summary entitled to judgment on Henderson’s tort (c). claims as a matter of law. only remaining OCGA 9-11-56 contract, Royal, cause of being a suit on supra grant was entitled to a favor damages claims, i.e., to the punitive sought based those Hamilton, damages 51-12-5; 51-12-6; and mental distress. §§ supra. “3. ‘Questions susceptible ordinarily . . . summary adjudication whether for or or the de- *5 (Cits.)’ Tolbert v. by
fendant, jury. be resolved but must [Cit.]” 463) (1986). Although is- App. Tanner, may by the court proximate cause be decided sues cases, At- palpable, indisputable plain, of law as matter Enterprises, 181 Ga. kinson Kirchoff properly denied the (1986), case here. The trial court is not the such summary by both made motions complaint. Fletcher v. generally See merits the judgment 206) (1988). Ford, Ga. part Case No. part and reversed in Judgment affirmed J.,C. Carley, Case No. A90A1486. Judgment A90A1485. affirmed J., specially. P. McMurray, concur concurring specially. Judge, Chief Carley, 1 of specific regard I With to Division judgment. in the concur analysis majority I majority opinion, cannot original it conclusion that affidavit was upon bases sufficient, permissible St. Jo- amendment was under but Nease, To seph’s Hosp. v. correctly contrary, I that the trial court refused dismiss believe prop- in that it original affidavit was sufficient because forth specific facts set erly adopted incorporated reference (c). complaint. See OCGA 9-11-10 in the Presiding McMurray joins I Judge state that am authorized to special concurrence. Decided October Rehearings denied November Goodman,
Goodman, Ed McGuffey, Lindsey, Aust & William S. Dalziel, Jr., Jr., Williams, Lindsey, & Charles M. ward H. Savell Stair, Christie, Webb, Carlock, Copeland, L. Semler & Carrie Carlock, appellants. S. Thomas Jones, Eastwood,
Jones, Brennan, Taylor Myles E. Brown & W. McGuire, appellee. James FIRE AMERICAN MUTUAL
A90A1510. DUNCAN v. COMPANY. INSURANCE Judge. Beasley, action, Shirley Duncan defendant declaratory judgment
In this motion for appeals grant of Mutual’s American par- her motion for denial of assigns and also error