Allen v. Caldwell

Andrews, Judge.

Shirley and John Allen appeal the trial court’s order granting defendant Alton Caldwell, D.O.’s, motion to dismiss their complaint in the underlying medical malpractice case. Caldwell’s motion to dismiss was based on the Allens’ failure to comply with the mandates of *55OCGA § 9-11-9.1. We affirm.

1. On December 16, 1994, the Allens filed the underlying renewal of their medical malpractice action pursuant to OCGA § 9-2-61. Attached to their renewed complaint was a copy of an unnotarized affidavit signed by Steven Todd Flax, M.D., that had been transmitted by facsimile to the Allens’ attorney.

While a facsimile affidavit can satisfy the requirements of OCGA § 9-11-9.1, see Sisk v. Patel, 217 Ga. App. 156, 158 (456 SE2d 718) (1995), “[i]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence.” (Punctuation omitted.) Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994); Hill-Everett v. Jones, 197 Ga. App. 872, 873 (1) (399 SE2d 739) (1990).

Additionally, the facsimile affidavit is not identical to the original affidavit filed by the Allens with their Amendment to Complaint on March 1, 1995, over two and one-half months after the complaint had been filed in this action and over four years since the alleged malpractice. It is acknowledged by the Allens that the original affidavit with jurat was not in the possession of their counsel when the complaint was filed, due to Dr. Flax’s surgery schedule.

Therefore, the affidavit attached to the Allens’ renewed complaint did not satisfy the requirements of OCGA § 9-11-9.1.

2. Neither can we accept the dissent’s conclusion that, because paragraph 4 of the complaint incorporates the pleadings from the Al-lens’ prior action, the Allens were relying on the 1993 affidavit of Dr. Flax, filed with that action, which affidavit was properly notarized. This contention, however, is specifically negated by paragraph 13 of the complaint that states “[t]he affidavit required by OCGA § 9-11-9.1 is attached hereto.” (Emphasis supplied.) No copy of the 1993 affidavit is attached, only the facsimile.

In addition, the facsimile and the original 1994 affidavits differ in the signatures of Dr. Flax and the number of lines of print appearing on the pages. The facsimile contains more lines of print per page than the “original.” As pointed out in Sisk, supra, for there to be a facsimile, there must be an original. The definition of “facsimile” is “[a]n exact copy or reproduction, as of a document.” American Heritage Dictionary, Second College Edition, 1985, p. 484. Therefore, there is no rational conclusion possible from Sisk except that the facsimile there contained the jurat and was identical to the original. Such is not the case here. See also Roberts v. Faust, 217 Ga. App. 787 (459 SE2d 448) (1995).

At what point would the dissent cease to expand OCGA § 9-11-9.1 beyond its terms? If the facsimile is not required to be exact, how close to the original must it be? Is it enough if there is no written sig*56nature of the affiant, only a typed name and line? Is it enough if the “original” when filed contains the “gist” of the facsimile?

As the trial court concluded here, the affidavit filed with the complaint did not comply with the plain terms of OCGA § 9-11-9.1.

Judgment affirmed.

Birdsong, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, C. J., McMurray, P. J., Pope, P. J., and Blackburn, J., dissent.