Wanda Dockens appeals from the grant of summary judgment to Runkle Consulting, Inc. in this fraud and negligent inspection case. She contends the court erred in finding, inter alia, that the negligence claim alleged professional malpractice that required an affidavit pursuant to OCGA § 9-11-9.1, and that her complaint failed to state a cause of action for fraud. For the following reasons, we affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law.
(Citations and punctuation omitted.)
Johnson v. Rodier,
The record shows the following undisputed facts, viewed in the light most favorable to Dockens, as the nonmovant. George W. Runkle is an engineer and president of Runkle Consulting, Inc., a consulting engineering firm which provides structural engineering, inspections, and other services to builders and developers. Runkle was hired by Sunrise Builders, Inc., to inspect a retaining wall on lot 10 B in the Garden City subdivision in DeKalb County in order to determine if the wall complied with the applicable building codes and acceptable engineering practices. On or around July 12, 2001, Runkle inspected the wall and determined that it complied with the applicable building codes and acceptable engineering practices. On July 14,2001, Runkle sent Sunrise Builders a letter that stated, in relevant part, as follows:
At your request, I inspected the timber retaining wall [on Lot B]. It was constructed from creosote treated railroad ties, battered back 1 1/2" each tie. The wall is 5' to 6' tall. Dead men were placed every third course of ties, and on 6' centers. In our discussion, you stated that the dead men are six foot long, and are battered at the back with an additional railroad tie. This layout is acceptable, and will provide adequate resistance from sliding and overturning.
On August 6,2001, Dockens, who is a licensed realtor in Georgia, purchased property which was adjacent to the retaining wall. Before she purchased the property, she noticed that the ground surrounding the wall was “too soft,” and complained about it to the builder. The builder told Dockens that the wall had been inspected by an engineer and certified as “sound.” Dockens admitted that, at the time she purchased her property, she did not know who had inspected the retaining wall or whether that person was actually an engineer, and she had not received a copy of Runkle’s letter to Sunrise Builders. In fact, there is no evidence that Dockens had any contact with Runkle before she closed on her property.
In July 2005, part of the retaining wall collapsed, damaging Dockens’ property. According to Dockens, a subsequent inspection revealed that the wall was not constructed as
1. On appeal, Dockens argues that the court erred in granting summary judgment on her negligence claim after finding that her complaint alleged professional negligence and, therefore, required an affidavit pursuant to OCGA § 9-11-9.1. Dockens’ complaint alleged the following, in relevant part:
Mr. George Runkle of Runkle Consulting, Inc., a licensed professional engineer by the state of Georgia performed an inspection of the retaining walls located at 6291 Sunflower Place, Lithonia GA 30338 in DeKalb County, State of Georgia. Mr. Runkle then issued a certification statement bearing his professional seal to Sunrise Builders that the wall was sound.
(a) In her complaint, Dockens did not allege any act by Runkle that fell outside of his professional capacity as a licensed engineer, nor did she present any evidence of any such act in response to Runkle’s motion for summary judgment. Under OCGA§ 9-11-9.1 (a),
[i]n any action for damages alleging professional malpractice against a professional licensed by the State of Georgia and listed in subsection (d) of this Code section . . . , the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
Subsection (d) (21) of the statute lists “Professional engineers” as a profession to which this pleading requirement applies. Dockens’ claim clearly states that the allegedly negligent act, the inspection of the wall, was performed by Runkle, “a licensed professional engineer,” who issued an inspection letter which bore his “professional
seal.” Accordingly, Dockens’ complaint shows on its face that it involves an allegation of professional negligence that required an expert affidavit under OCGA § 9-11-9.1 (a) and (d) (21). See
Hodge v. Jennings Mill, Ltd.,
(b) Dockens argues, however, that her claim sounds in ordinary negligence because, “[w]hile the design of the retaining wall might require professional engineering services [,] the installation of the retaining wall did not require professional engineering services.” This argument is irrelevant to the instant case. As Dockens has acknowledged, Runkle was not involved in any way with the actual installation of the wall, nor does Dockens’ complaint allege such involvement. In fact, the record shows that Runkle inspected the wall after it was built.
(c) In the alternative, Dockens argues that her claim complied with OCGA § 9-11-9.1 because it “was filed within 10 days of the expiration of the statute of limitations” and she “was unable to obtain an expert affidavit.” Pretermitting the fact that Dockens failed to make this argument in the court below, Dockens relies on former OCGA § 9-11-9.1 (b), a provision which allowed plaintiffs an automatic 45-day grace period within which to file a belated expert affidavit when the relevant statute of limitation was going to expire within ten days of the filing of the complaint.
Scott v. Martin,
(d) Dockens also suggests that she should be exempt from the affidavit requirement because she is acting pro se. In
Hardwick v. Atkins,
Under the circumstances, we find the trial court properly granted Runkle summary judgment on Dockens’ professional negligence claim pursuant to OCGA § 9-11-9.1.
2. Dockens contends the court erred in finding that her complaint failed to state a cause of action for fraud under OCGA §§ 51-6-1 and 51-6-2 (b). We disagree.
(a) “The tort of fraud has five elements: a false representation by [the] defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by [the] plaintiff, and damage to [the] plaintiff.” (Citation omitted.)
Johnson v. Rodier,
OCGA§ 9-11-9 (b) requires that all allegations of fraud must be made with particularity and not averred generally. Notice pleadingis the rule in Georgia, and under OCGA§ 9-11-9 (b), allegations of fraud must be pled with particularity. It is well settled that a general allegation of fraud amounts to nothing — it is necessary that the complainant show, by specifications, wherein the fraud consists. Issuable facts must be charged.
(Citation and punctuation omitted.)
Majeed v. Randall,
On its face, the complaint failed to allege any specific facts to support a finding that Runkle intentionally made false statements about the condition of the wall when he sent the inspection letter to Sunrise Builders; that he sent the letter to the builder with the intention of inducing Dockens, a third party, to rely on it; or that Dockens justifiably relied on the letter, particularly when it is undisputed that Dockens did not see it until after she had purchased the adjacent property. Therefore, the complaint was legally insufficient to present a fraud claim, and the trial court properly granted Runkle summary judgment on the claim.
Majeed v. Randall,
(b) Even if Dockens’ complaint had been sufficient to state a cause of action for fraud, however, Runkle was still entitled to summary judgment on the claim.
For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. Because summary judgment is appropriate if only one essential element of [Dock-ens’] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal.
(Citation omitted.)
Johnson v. Rodier,
Pretermitting whether Dockens presented evidence to show that Runkle intentionally made a false representation in the
Accordingly, because Dockens failed to present any evidence to support at least one essential element of her fraud claim, Runkle was entitled to summary judgment.
Johnson v. Rodier,
3. We note that, in her appellate briefs, Dockens attempts to bolster her arguments by citing to evidence that she submitted to the trial court after the court had granted summary judgment to Runkle and after she had filed a notice of appeal from that order.
2
Pretermitting whether this evidence supports her fraud claim, it was not p art of the record prior to the court’s grant of summary j udgment and, therefore, cannot be considered on appeal.
Rental Equip. Group v. MACI,
4. Dockens’ remaining enumerations are rendered moot by Divisions 1 and 2, supra.
Judgment affirmed.
Notes
In her complaint, Dockens cites to OCGA § 51-2-1 as the applicable Code section for her negligence claim. That statute, however, addresses imputable negligence, an issue that is not relevant under any of the facts of this case as alleged.
The record shows that Dockens filed an appeal from the court’s grant of summary judgment on April 11, 2006. On the same day, she also filed a pro se “Motion for Rehearing” in the trial court, asking the court to reconsider its judgment. She also subsequently filed an “Amended Motion for Rehearing.” Attached to both of these documents were exhibits upon which she now attempts to rely.