Precision Planning, Inc. v. Wall
387 S.E.2d 610
Ga. Ct. App.
1989
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PRECISION PLANNING, INC. v. WALL; PRECISION PLANNING, INC. v. WILSON

A89A1003, A89A1004

Court of Appeals of Georgia

OCTOBER 31, 1989

193 Ga. App. 331 | 387 S.E.2d 610

DEEN, Presiding Judge.

ing the hearing when it indicated that it would deny the motion, it did not state specifically at the close of the evidence when it issued its oral ruling that the child‘s age was the one and only reason it was denying the motion; it merely denied the motion. The written order denying the motion does not give any specific reason for the denial. Our state statute governing HLA blood tests still permits the trial court to exercise its discretion in whether or not to order such testing (OCGA § 19-7-45), and we find no abuse of discretion in this case. Of course, at the trial of the paternity action, the mother can use appellee‘s refusal to submit to the blood test to show that he is not precluded from being the child‘s father. OCGA § 19-7-46.

2. We find no basis for concluding that the trial court limited the testimony given by the child‘s mother at the hearing. The trial court allowed appellant to present all the evidence relevant to this issue that appellant wished to present, and it properly restricted the testimony regarding the “passionate details” of the sexual relations between the child‘s mother and alleged father.

3. Nor do we find merit in appellant‘s assertion that the trial court erroneously refused to allow appellant to call appellee, a subpoenaed witness, to the stand to testify whether or not he had had sexual relations with the child‘s mother. The trial court concluded that such testimony was not necessary on the motion for the blood test and that the issue would be taken up at the paternity trial. We agree. No harmful error occurred as a result of the trial court‘s decision to refuse the testimony sought.

Judgment affirmed. Deen, P. J., and Birdsong, J., concur.

DECIDED OCTOBER 31, 1989.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellant.

M. Theodore Solomon II, for appellee.

A89A1003. PRECISION PLANNING, INC. v. WALL.

A89A1004. PRECISION PLANNING, INC. v. WILSON.

(387 SE2d 610)

DEEN, Presiding Judge.

The two appellees sued the appellant, Precision Planning, Inc., for professional malpractice as the project engineer of a construction project. The appellees filed their complaints on October 2, 1987, although the operative facts occurred in late 1985. In answering the complaints, the appellant raised the defense that the appellees had not submitted the affidavit of an expert as required by OCGA § 9-11-9.1, which was effective July 1, 1987, and subsequently moved to dismiss the complaints on that basis. The appellees never attempted to amend their complaints to include an expert‘s affidavit. The trial court denied the appellant‘s motions, after finding that OCGA § 9-11-9.1 affected substantive rights and thus was to be applied prospectively only. This interlocutory appeal followed. Held:

“Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.] ... Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. [Cit.]”

.

In the instant case, the OCGA § 9-11-9.1 requirement of submitting an expert‘s affidavit along with the complaint did not affect the substantive right of action for professional malpractice; it alters neither the standard of care to be applied nor the measure of recovery. The statute merely prescribes a procedure for enforcing that right, evidently with the purpose of preventing frivolous or unsustainable actions. Accordingly, the trial court erred in applying the statute prospectively only, and in denying the appellant‘s motions to dismiss. Compare

. See also
.

Judgments reversed. Birdsong and Benham, JJ., concur and also concur specially.

BENHAM, Judge, concurring specially.

In light of the Supreme Court‘s recent decision in

, I must agree that OCGA § 9-11-9.1 is applicable to suits alleging professional malpractice other than medical malpractice. Should the legislature determine that OCGA § 9-11-9.1 has been interpreted more broadly than that enacting body intended, it has the power to rewrite the statute.

I also wish to point out that appellee Wilson‘s argument that OCGA § 9-11-9.1 is unconstitutional was not raised in the trial court and therefore cannot be addressed by the appellate courts.

I am authorized to state that Judge Birdsong joins in this opinion.

DECIDED OCTOBER 31, 1989.

Carter & Ansley, Ben Kingree, Michael A. Coval, for appellant.

Jerry Phillips, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Swift, Currie, McGhee & Hiers, Donald F. Daugherty, Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellees.