¶1dissenting.
¶2In my opinion the Court of Appeals was correct in reversing the grant of a summary judgment to the applicant in certiorari since the respondents had no duty to offer expert opinion evidence to refute the expert opinion evidence submitted by the applicant in certiorari.
¶3The majority opinion has confused an area of the law which had become settled by a long line of cases.
¶4In Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393) (1969), this court held: "Summary judgment can never issue based upon opinion evidence alone.” In Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395) (1969), it was held: "While opinion evidence is sufficient in a proper case to present a jury issue and thus preclude a summary *410judgment, yet opinion testimony of the ultimate fact to be decided in the case is never sufficient to authorize the grant of a summary judgment.” Following these two cases, this court and the Court of Appeals have repeatedly ruled that summary judgment may not be granted on opinion evidence.
¶5In medical malpractice cases, which resemble legal malpractice cases in the method of proof by experts, the Court of Appeals has applied the rule on opinion evidence in numerous cases. For instance see Truluck v. Funderburk, 119 Ga. App. 734 (168 SE2d 657) (1969); Williams v. Melton, 120 Ga. App. 466 (171 SE2d 318) (1969); Elberton-Elbert County Hosp. Authority v. Watson, 121 Ga. App. 550 (174 SE2d 470) (1970); Jordan v. Scherffius, 121 Ga. App. 685 (175 SE2d 97) (1970); McGlamry v. Smallwood, 124 Ga. App. 401 (184 SE2d 52) (1971); Rushing v. Ellis, 124 Ga. App. 621 (184 SE2d 667) (1971).
¶6In Anderson v. Crippen, 122 Ga. App. 27 (176 SE2d 196) (1970), and Dickerson v. Hulsey, 138 Ga. App. 108 (225 SE2d 464) (1976), (with four Judges dissenting in each case), the Court of Appeals affirmed the grant of summary judgment to defendant physicians because of the failure of the plaintiffs to support their contentions of negligence with any evidence, opinion or otherwise.
¶7The rules governing professional malpractice cases when tried before a jury are: (1) The presumption is that the services were performed in an ordinarily skillful manner and the burden is on the one receiving the services to show a want of due care, skill, and diligence. (2) The proof required to overcome such presumption is that given by other professionals in the same field as expert witnesses, except where actionable negligence, or the lack of negligence, clearly appears from nonexpert testimony. Shea v. Phillips, 213 Ga. 269 (2) (98 SE2d 552) (1957); Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976).
¶8In Hughes v. Malone, 146 Ga. App. 341, supra, cited by the applicant in the motion for reconsideration, the Court of Appeals dealt with a case in which a convicted criminal sued his retained attorney for alleged misrepresentation in his criminal case. The Court of *411Appeals affirmed the grant of summary judgment to the attorney, and in the summation of its opinion stated (p. 349): "Succinctly stated, it may be said that in a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner. This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper. Should this presumption be rebutted by expert legal testimony there is presented for the jury a question of fact.” (Emphasis supplied.) The emphasized statement, as contended by the applicant, is contrary to the holding by the Court of Appeals in the present case that the expert opinion evidence for the applicant did not authorize the grant of summary judgment. I conclude that the emphasized statement is not a correct statement of the law as applied to summary judgment, although the judgment in Hughes v. Malone, supra, is not before us for review.
¶9The 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.
¶10The Court of Appeals in the present case was correct in holding that "except in those, situations where it is absolutely clear from the record that the attorney’s actions are not the proximate cause of the client’s injury, the question of an attorney’s alleged malpractice is a matter for the jury’s determination after hearing expert testimony on the standards of 'diligence’ and 'skill’ expected of attorneys in the performance of their professional duties.
¶11I am authorized to state that Presiding Justice Undercofler joins in this dissent.