Filed: Oct. 20, 2016
Latest Update: Oct. 20, 2016
Summary: Rickman , Judge . On October 21, 2014, after the death of Stephen McLoughlin, his estate, the appellee, filed a complaint against the appellants and his treating physician, Andrew Frinks, M.D. 1 alleging claims of ordinary and professional negligence and seeking damages. The appellants filed an answer raising as a defense appellees' failure to file an expert affidavit in accordance with OCGA 9-11-9.1. 2 The appellants did not file, however, a motion to dismiss. Frinks filed his answer al
Summary: Rickman , Judge . On October 21, 2014, after the death of Stephen McLoughlin, his estate, the appellee, filed a complaint against the appellants and his treating physician, Andrew Frinks, M.D. 1 alleging claims of ordinary and professional negligence and seeking damages. The appellants filed an answer raising as a defense appellees' failure to file an expert affidavit in accordance with OCGA 9-11-9.1. 2 The appellants did not file, however, a motion to dismiss. Frinks filed his answer als..
More
Rickman, Judge.
On October 21, 2014, after the death of Stephen McLoughlin, his estate, the appellee, filed a complaint against the appellants and his treating physician, Andrew Frinks, M.D.1 alleging claims of ordinary and professional negligence and seeking damages. The appellants filed an answer raising as a defense appellees' failure to file an expert affidavit in accordance with OCGA § 9-11-9.1.2 The appellants did not file, however, a motion to dismiss. Frinks filed his answer also alleging a defense based upon the appellees failure to file an expert affidavit as required by OCGA § 9-11-9.1 and, contemporaneously, filed a motion to dismiss. On January 2, 2015, the appellee voluntarily dismissed her complaint without prejudice.
On June 26, 2015, the appellee re-filed her complaint pursuant to OCGA § 9-2-613 and attached an expert affidavit. Frinks filed his answer to the renewed complaint and re-filed his motion to dismiss based upon the appellees failure to attach an expert affidavit to the original complaint. The appellants also filed, for the first time, a motion to dismiss the appellees renewed complaint for failure to attach an expert affidavit to the original complaint.
The trial court granted, Frinks's motion to dismiss, as to the professional negligence claim, because the original complaint failed to comply with OCGA § 9-11-9.1. However, the trial court denied the appellants' motion to dismiss, concluding that they waived any objection to the appellees' failure to file an expert affidavit with the original complaint because they failed to file a motion to dismiss the original complaint. It is from this order that the appellants now appeal. The appellants contend that the trial court erred by denying their motion to dismiss. For the following reasons, we affirm.
The appellants argue that the trial court erred by denying their motion to dismiss because Frinks filed a motion to dismiss the original complaint and, thus, they were not required to file a motion to dismiss in addition to their answer to the original complaint. We disagree.
"On appeal, we conduct a de novo review of a trial court's ruling on a motion to dismiss." (Punctuation and footnote omitted.) Kerr v. OB/GYN Assoc. of Savannah, 314 Ga.App. 40, 41, 723 S.E.2d 302 (2012).
Pursuant to OCGA § 9-11-9.1 (f),
If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.
"On its face, this statute requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under OCGA § 9-2-61."4 Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407, 696 S.E.2d 640 (2010).5 The appellants did not file a motion to dismiss contemporaneously with their answer to the original complaint. They argue that because Frinks filed a motion to dismiss along with his answer to the original complaint, they were not required to. However, not only did the appellants fail to file a motion to dismiss the original complaint as required by OCGA § 9-11-91 (f), they also did not join in Frinks's motion to dismiss the original complaint. The trial court correctly noted in its order denying the appellants' motion to dismiss that, "[n]o reason appears why [appellants] should be able to rely on the motion [Frinks] filed in the original case[.]"
"[I]n order to bar appellees from filing a renewal action, OCGA § 9-11-9.1 (c) required appellants to file a motion to dismiss at the same time they filed their answer to the original complaint. Only raising the matter as a defense in the answer was insufficient to preclude appellees from renewing their action pursuant to OCGA § 9-2-61." Opensided MRI of Atlanta, 287 Ga. at 408, 696 S.E.2d 640.6 Thus, the trial court did not err in denying appellants' motion to dismiss. See id.; see also Dove v. Ty Cobb Healthcare Systems, Inc., 316 Ga.App. 7, 10-11 (2), 729 S.E.2d 58 (2012).
Judgment affirmed.
Miller, P.J., and McMillian, J., concur.
