Appellants, purchasers of certain real property, brought this action against appellees Pamela S. Robinson and Aiken & Ward, attorneys, for professional negligence in connection with the sale of said real property. Appellees filed a motion for summary judgment which the trial court granted on the ground that no attorney-client relationship existed between the parties. This appeal followed. Although appellants enumerate as error the trial court’s ruling as to the absence of an attorney-client relationship, we will first address appellees’ argument raised in their motion for summary judgment and on appeal that appellant’s complaint is barred by their failure to comply with OCGA § 9-11-9.1.
The sale at issue closed on March 29, 1988, and appellants filed their initial complaint against appellees for professional negligence on December 20, 1988, but did not file with the complaint an affidavit of an expert as required by OCGA § 9-11-9.1. Appellees raised this defect as an affirmative defense in their initial responsive pleading. On March 13, 1989, appellants amended the complaint but still failed to attach an expert’s affidavit. Thereafter appellants voluntarily dismissed the complaint. On March 23, 1990, appellants re-filed the complaint, yet again, without the requisite expert affidavit, and appellees again asserted appellants’ failure as an affirmative defense. On June 12, 1990, appellants amended the second complaint and attached the affidavit of an expert dated June 12, 1990. (Although this pleading does not appear in the appellate record, it is referenced in appellees’ recitation of the facts.) However, on September 27, 1990, appellants moved to voluntarily dismiss the second action. Finally, on March 21, 1991, appellants filed a third complaint, this time attaching the June 12, 1990 affidavit. In their responsive pleading, appellees averred that the complaint should be dismissed based on appellants’ failure to support the complaint and substantially similar complaints with affidavits pursuant to OCGA § 9-11-9.1. In their motion for summary judgment, appellees argued further that the failure to file an expert’s affidavit represented a nonamendable defect which precluded the third action.
“Amended paragraphs (e) and (f) of OCGA § 9-11-9.1 provide that the failure to attach an expert affidavit in a professional malpractice case renders the complaint subject to dismissal and is a defect which cannot be amended except where the failure to attach the
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[affidavit] ‘was the result of a mistake,’ and unless such failure was ‘the result of a mistake,’ such complaint shall not be subject to the renewal provisions of OCGA § 9-2-61 after the applicable period of limitation.”
Foskey v. Foster,
Based on the foregoing, we need not address the question of the existence of an attorney-client relationship, even though the trial court granted appellees’ motion on that ground. A judgment right for any reason must be affirmed.
Dunwoody-Woodlands Condo. Assn. v. Hedquist,