Walker v. Howard

Court of Appeals of Georgia

Walker v. Howard

253 S.E.2d 434, 149 Ga. App. 41, 1979 Ga. App. LEXIS 1711

CourtCourt of Appeals of Georgia

DecidedFebruary 13, 1979

Docket54438

StatusPublished

Cited by1 cases

This text of 253 S.E.2d 434 (Walker v. Howard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Walker v. Howard, 253 S.E.2d 434, 149 Ga. App. 41, 1979 Ga. App. LEXIS 1711 (Ga. Ct. App. 1979).

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Opinion

Banke, Judge.

Relying on this court’s subsequent decision in Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107) (1978), which established a new rule of law regarding the role of expert testimony offered in support of summary judgment motions in malpractice cases, the Supreme Court on certiorari reversed our judgment in this case, reported at 144 Ga. App. 413 (241 SE2d 21) (1977).

Justice Jordan, dissenting to the Supreme Court’s majority decision, wrote: "The law was well settled at the time that opinion evidence alone would not support a motion for summary judgment. Therefore, there was no reason for the plaintiff to offer evidence opposing that offered by the movant for summary judgment. The plaintiff could not be required to anticipate that this court would abrogate this well-settled principle of law. The plaintiffs have been 'sandbagged’ by the majority opinion. At the very least, the case should have been remanded to give plaintiffs an opportunity to offer opinion evidence contrary to that offered by the defendant.” Howard v. Walker, 242 Ga. 406, 411 (249 SE2d 45) (1978).

This court is, however, bound by the Supreme Court’s majority decision; and, accordingly, our judgment reversing the trial judge’s grant of summary judgment to the defendant/attomey is reversed.

[42]*42Decided February 13, 1979. R. M. Bernhardt, for appellants. Freeman & Hawkins, Paul M. Hawkins, M. H. Blackshear, Jr., for appellee.

Judgment affirmed.

Shulman and Birdsong, JJ., concur.

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Banke, Judge.

Relying on this court’s subsequent decision in Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107) (1978), which established a new rule of law regarding the role of expert testimony offered in support of summary judgment motions in malpractice cases, the Supreme Court on certiorari reversed our judgment in this case, reported at 144 Ga. App. 413 (241 SE2d 21) (1977).

Justice Jordan, dissenting to the Supreme Court’s majority decision, wrote: "The law was well settled at the time that opinion evidence alone would not support a motion for summary judgment. Therefore, there was no reason for the plaintiff to offer evidence opposing that offered by the movant for summary judgment. The plaintiff could not be required to anticipate that this court would abrogate this well-settled principle of law. The plaintiffs have been 'sandbagged’ by the majority opinion. At the very least, the case should have been remanded to give plaintiffs an opportunity to offer opinion evidence contrary to that offered by the defendant.” Howard v. Walker, 242 Ga. 406, 411 (249 SE2d 45) (1978).

This court is, however, bound by the Supreme Court’s majority decision; and, accordingly, our judgment reversing the trial judge’s grant of summary judgment to the defendant/attomey is reversed.

[42]*42Decided February 13, 1979. R. M. Bernhardt, for appellants. Freeman & Hawkins, Paul M. Hawkins, M. H. Blackshear, Jr., for appellee.

Judgment affirmed.

Shulman and Birdsong, JJ., concur.

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253 S.E.2d 434, 149 Ga. App. 41, 1979 Ga. App. LEXIS 1711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-howard-gactapp-1979.

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