BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE.
Williams sued John M. Murrell, D. P. M., and Midtown Foot
Clinic, P. C., alleging in her amended complaint that the
defendants had defrauded her by billing her for foot
surgeries that were never performed. The trial court
dismissed Williams's fraud claims based on her failure to
file an expert affidavit with her complaint pursuant to OCGA
§ 9-11-9.1. Because Williams's fraud claims were
grounded in allegations of intentional misconduct, those
claims did not need to be accompanied by an expert affidavit,
and we therefore reverse the judgment.
record reflects that Williams was a patient of Dr. Murrell, a
podiatrist, at the Midtown Foot Clinic. In October 2017,
Williams sued Dr. Murrell and the Midtown Foot Clinic,
seeking the production of her medical records, punitive
damages, and attorney fees. After receiving and reviewing the
records from the defendants during the litigation, Williams
amended her complaint to add two claims against the
defendants in which she alleged that they had defrauded her
by billing her for foot surgeries that were never
performed. Williams did not file an expert affidavit
with her original or amended complaint.
Williams filed her amended complaint, the defendants
submitted a letter brief to the trial court asserting that
Williams's fraud claims implicated professional skill and
judgment, necessitating the filing of an expert affidavit
under OCGA § 9-11-9.1,  and that the amended complaint
was defective because no affidavit had been filed. Williams
responded by filing a "Motion for Summary Judgment as to
OCGA § 9-11-9.1 Defense" in which she sought a
ruling that she was not required to file an expert affidavit
under OCGA § 9-11-9.1 based on the fraud allegations
raised in her amended complaint. The defendants opposed
Williams's motion and filed a "Cross Motion for
Summary Judgment," asserting that Williams's failure
to attach an OCGA § 9-11-9.1 affidavit to her amended
complaint required the dismissal of her fraud claims and that
her claim for the production of her medical records was now
moot because the records had been produced.
trial court thereafter entered its order dismissing
Williams's fraud claims, ruling on the party's
self-styled cross-motions for summary judgment in the
defendants' favor. The trial court stated:
Plaintiff does not allege that Defendant Murrell billed her
for surgeries not performed, but rather she alleges that
Defendant Murrell did not perform the procedures for which he
billed her. The record reflects, and Plaintiff concedes, that
Defendant Murrell performed various procedures on Plaintiffs
feet on October 5, 13, and 18, 2016. Thus, whether Defendants
committed fraud in billing Plaintiff for the procedures she
claims were not done turns on a determination of what, or to
what extent, procedures actually were performed. As neither
Plaintiff nor the Court have professional knowledge in the
area of podiatric surgery, this critical issue requires the
exercise of professional knowledge and judgment. [Cit.]
Therefore, an expert affidavit under OCGA § 9-11-9.1 is
required, and Plaintiff's failure to file such an
affidavit necessitates the dismissal of her fraud claims.
appeal by Williams followed.
Williams contends that because she alleged claims for fraud
in her amended complaint rather than claims for professional
malpractice, the trial court erred in dismissing those claims
on the ground that she failed to file an expert affidavit
under OCGA § 9-11-9.1. We agree.
the outset, we note that the defendants call attention to the
fact that in her brief, Williams expressly enumerates as
error the trial court's denial of her "Motion for
Summary Judgment as to OCGA § 9-11-9.1 Defense,"
but not the trial court's grant of the defendants'
"Cross Motion for Summary Judgment." Given this
omission, the defendants contend that Williams has abandoned
any argument that the trial court's ruling in favor of
the defendants on the expert affidavit issue was erroneous.
See Kitchin v. Reidelberger, 311 Ga.App. 135, 137
(4) (714 S.E.2d 361) (2011) ("An appealing party . . .
may not use its brief to expand its enumerations of error by
arguing the incorrectness of a trial court ruling not
mentioned in the enumerations of error."). We are
§ 5-6-48 (f) provides in relevant part:
Where it is apparent from the notice of appeal, the record,
the enumeration of errors, or any combination of the
foregoing, what judgment or judgments were appealed from or
what errors are sought to be asserted upon appeal, the appeal
shall be considered in accordance therewith notwithstanding
that . . . the enumeration of errors fails to enumerate
clearly the errors sought to be reviewed.
"[T]he legislature, in enacting OCGA § 5-6-48 (f),
has imposed on the appellate courts a statutory duty to
discern what errors an appellant is attempting to
articulate." Felix v. State, 271 Ga. 534, 538
(523 S.E.2d 1) (1999). Furthermore, pursuant to OCGA §
5-6-30, the Appellate Practice Act is to be "liberally
construed so as to bring about a decision on the merits of
every case appealed and to avoid dismissal of any case or
refusal to consider any points raised therein."
present case, Williams's notice of appeal shows that she
is appealing the judgment entered on the parties'
cross-motions in which the trial court dismissed her fraud
claims for failure to include an OCGA § 9-11-9.1 expert
affidavit. And, in the "Enumeration of Errors"
section of her brief, Williams expressly asserts that
"Georgia does not require an expert's affidavit to
accompany a complaint alleging fraud." In light of the
aforementioned statutory directives, we conclude that when
the notice of appeal, the record, and Williams's
enumerations of error are read together, it is clear that
Williams intended to appeal the trial court's judgment
dismissing her fraud claims and to claim as error the trial
court's determination that an OCGA § 9-11-9.1 expert
affidavit was required to support those claims. See