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Crosby v. Pitman

The expert affidavit requirement set forth in O.C.G.A. § 9-11-9.1 only applies to claims of professional malpractice and does not apply to claims for intentional misconduct against a professional.

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Michael Shane Crosby appeals from the dismissal of the complaint he filed against his former attorney, David Pittman. Crosby asserts that the trial court erred in holding that the expert affidavit requirement of OCGA § 9-11-9.1 applied to his claims against Pittman for fraud and breach of fiduciary duty. Because OCGA § 9-11-9.1 applies only to claims of professional negligence, as opposed to ordinary negligence or intentional torts, we agree and reverse. “We review a trial court’s order dismissing a plaintiff’s complaint de novo.” Bonner v. Peterson .1 In doing so, “we treat all well-pled material allegations by the nonmovant as true and all denials by the movant as false. Only if the pleadings and exhibits incorporated into the pleadings show a complete failure by the plaintiff to state a cause of action, is the defendant . . . entitled to judgment as a matter of law.” Citation and punctuation omitted. Shuler v. Hicks, Massey & Gardner, LLP .2

So viewed, the record shows that in February 2003, Crosby retained Pittman to represent him with respect to a traffic citation. In January 2004, Pittman told Crosby that he would have to pay a $350 fine to resolve the citation. Crosby gave Pittman $350 with the understanding that he would use the money to pay the fine. Crosby later learned that the amount of the fine was only $300, but that it had never been paid. Because the traffic citation remained outstanding against him, Crosby’s driver’s license was suspended and he was unable to work as a trucker. As a result, Crosby was unable to make the payments due on his truck loan, the truck was repossessed, and a deficiency judgment in the amount of $15,000 was entered against him.

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