Stamps v. Johnson

Full title: STAMPS v. JOHNSON ET. AL

Court: Court of Appeals of Georgia

Date published: May 10, 2000

535 S.E.2d 1 (Ga. Ct. App. 2000)

535 S.E.2d 1

Opinion

A00A0413.

DECIDED: MAY 10, 2000.

Legal malpractice. Fayette State Court. Before Judge Sams.

Allen Stamps, pro se.

Regina Stamps, pro se. Johnson Law Firm, Donald W. Johnson, for appellees.

PHIPPS, Judge.

Allen and Regina Stamps filed a legal malpractice action against Don W. Johnson and The Johnson Law Firm (hereinafter "Johnson"). The trial court dismissed the Stampses' complaint with prejudice because they did not file an expert affidavit as required by OCGA § 9-11-9.1. The Stampses appeal. We find the dismissal with prejudice was proper and affirm.

The Stampses previously brought a slip-and-fall action against Ingles Markets on behalf of their daughter. Johnson represented them. The trial court granted partial summary judgment to Ingles because it determined that the complaint had been filed one week after a two-year statute of limitation had elapsed. Johnson apparently took the position that a longer statute of limitation applied.¹

1 The Stampses have attached to the brief correspondence wherein they urged Johnson to file the complaint before the two-year period elapsed.

The Stampses later filed this malpractice action. They did not file an expert affidavit as required by OCGA 9-11-9.1, however, and Johnson filed a motion to dismiss contemporaneously with his initial responsive pleading.² The trial court granted the motion.

2 See OCGA 9-11-9.1 (b).

On appeal, the Stampses assert three bases for their contention that the trial court erred: first, the court denied them their right to a jury trial; second, the evidence clearly establishes legal malpractice by Johnson, creating questions of fact to be determined by a jury regarding the damages they suffered; and third, the trial judge abused his discretion because the failure to file the affidavit was a procedural defect which could have been cured.

Under ABE Engineering, Inc. v. Griffin, Cochran Marshall,³ the trial court was correct in dismissing the complaint with prejudice. In ABE, the plaintiff failed to file an expert affidavit as required by § 9-11-9.1, and this court held that dismissal of the complaint with prejudice is the appropriate consequence. In accord with ABE, we affirm the judgment of the trial court.

3 212 Ga. App. 586 ( 443 S.E.2d 1) (1994).

Judgment affirmed. Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

PHIPPS, Judge.

DECIDED MAY 10, 2000 — RECONSIDERATION DENIED MAY 30, 2000.