Turner v

State, 213 Ga. App. 309, 444 S.E.2d 372 (1994). Plea of insufficient information to admit or deny is a denial. — Defendants’ plea that the defendants were without sufficient information to either admit or deny certain allegations of the complaint had the effect of a denial under subsection (b) of this section. Forsyth County Bd. of Comm’rs v. Adams, 228 Ga. 845, 188 S.E.2d 790 (1972), later appeal, 234 Ga. 315, 215 S.E.2d 679 (1975). Honesty required. — Second sentence of subsection (b) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), providing that if a party is without knowledge or information sufficient to form a belief as to the truth of an averment the party shall so state and that this statement shall have the effect of a denial, is subject to the requirements of honesty in pleading set forth in Ga. L. 1966, p. 609, § 11 (see now O.C.G.A. § 9-11-11). Anderson v. Atlanta Univ., Inc., 134 Ga. App. 365, 214 S.E.2d 394 (1975). Palpably untrue averment of ignorance. — Principle of subsection (b) does not apply if the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plainly and necessarily within the defendant’s knowledge that the defendant’s averment of ignorance must be palpably untrue. Weiss v. Moody, 121 Ga. App. 682, 175 S.E.2d 82 (1970); Anderson v. Atlanta Univ., Inc., 134 Ga. App. 365, 214 S.E.2d 394 (1975); North Ga. Prod. Credit Ass’n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977). Knowledge of officers charged to corporation. — If officer or other persons in charge of corporation’s affairs have knowledge, then the corporation should be held to have knowledge, and if those officers or others have information sufficient to form a belief as to the truth of an 9-11-8 averment, then the corporation has like information. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970). When the defendant ‘‘neither admits nor denies allegations,’’ it does not amount to a denial; it must be alleged that the defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970). ‘‘Appearance card’’ not a pleading. — ‘‘Appearance card,’’ containing no admissions, denials, or statements of inability to answer for any reason, does not meet the standards for a pleading as set forth in Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(b)) and subsection (b) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8). Glenco-Belvedere Animal Hosp. v. Winters, 129 Ga. App. 621, 200 S.E.2d 506 (1973). Filing of letter as exhibit to defensive pleadings cannot be considered as counterclaim. Carroll v. Afco Credit Corp., 143 Ga. App. 264, 238 S.E.2d 264 (1977). Answer in response to action on a note, alleging that the note had been satisfied either by credit or by moneys received by complaint, was not a nullity but was sufficient to join the issue in the case and to withstanda motion for judgment on the pleadings and a motion for judgment by default. Robinson v. Rearden, 134 Ga. App. 815, 216 S.E.2d 370 (1975). Motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense. Wellbaum v. Murphy, 122 Ga. App. 654, 178 S.E.2d 690 (1970). Defense of sovereign immunity. — Trial court erred in not granting a city’s motion to dismiss the negligence claims against the city because the city was exercising a governmental function when the city demolished an abandoned house claimed to be a nuisance; therefore, the city was entitled to sovereign immunity on those claims. City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013). 130 Affirmative Defenses Properly amended answer is a ‘‘pleading to a preceding pleading’’ within the meaning of subsection (c) of this section. Security Ins. Co. v. Gill, 141 Ga. App. 324, 233 S.E.2d 278 (1977); Spafford v. Maseroni, 186 Ga. App. 290, 367 S.E.2d 102 (1988). Purpose of requirement that affirmative defenses be pled is to prevent surprise and to give the opposing party fair notice of what the party must meet as a defense. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970); Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972); McFadden Bus. Publications, Inc. v. Guidry, 177 Ga. App. 885, 341 S.E.2d 294 (1986); Ohoopee Prod. Credit Ass’n v. Aspinwall, 183 Ga. App. 306, 358 S.E.2d 884 (1987); Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff ’d, 111 Bankr. 370 (M.D. Ga. 1989). When the affirmative defenses are pled by the defendant in the defendant’s answer, it is not necessary for the plaintiff to file any additional plea to deny the allegations of the defendant’s answer or to avoid the affirmative defenses set out therein, unless a motion is made to the court and the court directs the plaintiff to file a supplemental pleading. Turner v. Little, 70 Ga. App. 567, 28 S.E.2d 871 (1944) (decided under former Code 1933, §§ 81-309 and 81-311). Payment, one of the affirmative defenses itemized in subsection (c) of O.C.G.A. § 9-11-8, may be raised by amendment. Abdalla v. DDCB, Inc., 216 Ga. App. 617, 455 S.E.2d 598 (1995); Resiventure, Inc. v. National Loan Investors, 224 Ga. App. 220, 480 S.E.2d 212 (1996). Because the defendant failed to plead payment in the defendant’s answer or by amendment, the trial court erred in allowing evidence of payment. Brown v. Little, 227 Ga. App. 484, 489 S.E.2d 596 (1997). Insurance company argued that the trial court erred in considering the employer’s affidavit and other evidence that the funds had already been paid, in that the employer had failed to raise the affir- 9-11-8 mative defense of payment in the employer’s answer; however, there was certainly no surprise as the insurance company at the hearing on the motions for summary judgment claimed that the company understood the employer was asserting payment as an affirmative defense. Companion Prop. & Cas. Group v. Tutt Contr., Inc., 305 Ga. App. 879, 700 S.E.2d 708 (2010). Accord and satisfaction. — Plea of accord and satisfaction is plea in confession and avoidance, and burden of pleading and proving existence, terms, and effect of an accord and satisfaction is on the party relying upon the same. City of Atlanta v. Gore, 47 Ga. App. 70, 169 S.E. 776 (1933) (decided under former Code 1933, § 81-307). Defense of accord and satisfaction or settlement of claim sued on must be specially pled. Pilgrim Health & Life Ins. Co. v. Jenkins, 47 Ga. App. 441, 170 S.E. 687 (1933) (decided under former Code 1933, § 81-307). Testimony offered to prove accord and satisfaction is inadmissible on behalf of the defendant whose answer does not set up defense to which such testimony is applicable. Blanchard v. Georgia S. & Fla. Ry., 117 Ga. App. 858, 162 S.E.2d 442 (1968). Accord and satisfaction must be set forth affirmatively as a defense in the defendants’ answer and cannot be raised first by affidavit in support or opposition of a motion for summary judgment. Slappey Bldrs., Inc. v. FDIC, 157 Ga. App. 343, 277 S.E.2d 328 (1981). Particularity on issues of compromise settlement and accord and satisfaction. — If a pleading is in response to a prior pleading, such issues as compromise settlement or accord and satisfaction must be set out with particularity. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847 (1969). Failure of consideration is an affirmative defense which must be pled. Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 264 S.E.2d 571 (1980). Trial court properly granted summary judgment to an attorney in the attorney’s action to collect fees due under a written fee agreement with a former client as the attorney provided the services outlined 131 Affirmative Defenses (Cont’d) within the contract, and the former client failed to produce any competent evidence supporting an affirmative defense of failure of consideration after the attorney made a prima facie case for summary judgment. Browning v. Alan Mullinax & Assocs., P.C., 288 Ga. App. 43, 653 S.E.2d 786 (2007). Plea of total failure of consideration includes partial failure. Carlton Co. v. Allen, 135 Ga. App. 658, 218 S.E.2d 666 (1975). Bankruptcy. — Discharge in bankruptcy is an affirmative defense, and the defendant had the burden of proving the defense. Commercial & Exch. Bank v. McDaniel, 147 Ga. App. 378, 249 S.E.2d 97 (1978). Bankruptcy, to be relied upon as a defense, must not only be pled, but must be pled at the proper time; if not pled, the defense will be held to be waived, when no legal reason is shown to account for the neglect. Duncan v. Southern Sav. Bank, 59 Ga. App. 228, 200 S.E. 561 (1938) (decided under former Code 1933, Ch. 3, T. 81). Illegality represents an affirmative defense which must be pled. Prudential Timber & Farm Co. v. Collins, 155 Ga. App. 492, 271 S.E.2d 43 (1980). Fraud and illegality. — Defenses of fraud and illegality are affirmative defenses which, pursuant to subsection (c) of O.C.G.A. § 9-11-8, must be expressly pled. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 422 S.E.2d 277 (1992). Defense of laches must be specifically plead in responsive pleadings before the defense can be considered. Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973). Defense of estoppel. — Estoppel is an affirmative defense, and must therefore be set forth affirmatively in pleading to a preceding pleading. Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 441 S.E.2d 524 (1994). Estoppel is an affirmative defense and must be set forth affirmatively in a responsive pleading or in a motion for summary judgment. Rimes Tractor & Equip., Inc. v. Agricredit Acceptance Corp., 216 Ga. App. 249, 454 S.E.2d 564 (1995). 9-11-8 In an action for wrongful foreclosure against a bank by the grantors of security deeds, the bank’s theory of estoppel as an affirmative defense against the grantors’ claims for cancellation of the bank’s deeds under power related to the merits of the grantor’s claim, an issue which had no relevancy to the bank’s motion to cancel the grantors’ notices of lis pendens. Moore v. Bank of Fitzgerald, 266 Ga. 190, 465 S.E.2d 445 (1996). Trial court erred in finding that a handwritten agreement between the parties constituted an enforceable lease in the landlord’s dispossessory action as the only terms listed in the document were a payment schedule and brief damages and indemnification provisions, but there was no indication of when the lease term began or which property was covered; the statute of frauds, O.C.G.A. § 13-5-30(5), was violated, and because the affirmative defense of estoppel under O.C.G.A. § 9-11-8(c) was not raised by the parties, it was error for the trial court to have raised the issue sua sponte. Nacoochee Corp. v. Suwanee Inv. Partners, LLC, 275 Ga. App. 444, 620 S.E.2d 641 (2005). Statute of limitations must be specially pled. Sellers v. City of Summerville, 91 Ga. App. 105, 85 S.E.2d 56 (1954) (decided under former Code 1933, § 81-307). Statute of limitations is an affirmative defense which must be set forth when pleading to a preceding pleading. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980). Trial court erred in granting summary judgment to a dentist and the dental practices in a medical malpractice action, based on misdiagnosis, as the dental defendants failed to meet the defendants’ burden pursuant to O.C.G.A. § 9-11-8(c) of showing undisputed evidence that the affirmative defense of the two-year limitations period of O.C.G.A. § 9-3-71(a) barred the action. Brown v. Coast Dental of Ga., P.C., 275 Ga. App. 761, 622 S.E.2d 34 (2005). Buyer’s response to a seller’s summary judgment motion in which the buyer raised a statute of limitations defense was properly construed as a cross motion for summary judgment as: (1) pleadings were 132 to be judged by the pleadings’ substance and a final judgment was to grant the relief to which the successful party was entitled, even if that party had not demanded such relief; (2) Georgia law authorized a trial court to grant summary judgment to a non-moving party, sua sponte; (3) the seller had ample notice of the statute of limitation defense, but did not respond to it or amend its pleadings; and (4) more than the 30-day statutory period passed before the summary judgment was granted. All Tech Co. v. Laimer Unicon, LLC, 281 Ga. App. 579, 636 S.E.2d 753 (2006). Appellants were entitled to urge on appeal that the appellees failed to show that certain legal bills fell outside the limitation period of O.C.G.A. § 9-3-31, even if they did not raise that specific factual argument in the trial court; the statute of limitations was an affirmative defense, and so the burden was on the appellees to come forward with evidence sufficient to make out a prima facie case that the appellants’ billing claim fell outside the limitation period. Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 648 S.E.2d 690 (2007). In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff ’d, 284 Ga. 376, 667 S.E.2d 366 (2008). In a medical malpractice case, as the statute of limitations was an affirmative defense, the burden was on the doctors to establish as a matter of law that the patient’s ‘‘new injury’’—metastasized cancer which the doctors failed to diagnose— occurred and manifested itself more than two years before the suit was filed and that the suit was thus time-barred under O.C.G.A. § 9-3-71(a). As the doctors failed to meet that burden, the doctors were not entitled to summary judgment. Cleaveland v. Gannon, 284 Ga. 376, 667 S.E.2d 366 (2008). Trial court did not err by refusing to 9-11-8 consider whether the applicable statute of limitations barred an institute’s suit against a debtor on a promissory note and account because the record showed that the debtor failed to raise that defense of any statute of limitation either in the answer or in the response to the institute’s motion for summary judgment. Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013). Res judicata. — Trial court’s order vacating divorce judgment was not barred by the doctrine of res judicata when the wife filed no defensive pleadings and thereby failed to assert res judicata as an affirmative defense. McDade v. McDade, 263 Ga. 456, 435 S.E.2d 24 (1993). Trial court did not err in granting a lender’s motion for summary judgment because the doctrine of res judicata barred a debtor’s suit alleging that the lender incorrectly charged interest on the debtor’s unsecured revolving line of credit; the same matters were already litigated between the same parties in an action previously adjudicated on the merits by a court of competent jurisdiction. Rose v. Household Fin. Corp., 316 Ga. App. 282, 728 S.E.2d 879 (2012). Res judicata is an affirmative defense that must be raised in a timely filed responsive pleading. Azarat Mktg. Group, Inc. v. Department of Admin. Affairs, 245 Ga. App. 256, 537 S.E.2d 99 (2000). O.C.G.A. § 9-11-8(c) does not imply that an affirmative defense can be raised only by answer or the defense is forever waived; although defendants did not raise res judicata in their answer, the defendants raised the defense in their motion to dismiss, giving the plaintiffs fair notice of the defense, and thus there was no error in the trial court’s consideration of the res judicata issue. Gerschick & Assocs., P.C. v. Pounds, 266 Ga. App. 852, 598 S.E.2d 522 (2004). Dismissal properly denied based on failure to plead affirmative defense. — Trial court did not err in denying a garnishee’s motion to dismiss because the garnishor, a foreign corporation, was not shown to have been transacting business in the State of Georgia without the proper certification, and the garnishee did not plead an affirmative defense under 133 Affirmative Defenses (Cont’d) O.C.G.A. § 14-2-1502(a). Carrier411 Servs. v. Insight Tech., Inc., 322 Ga. App. 167, 744 S.E.2d 356 (2013). Affirmative defense of limitations cannot be raised for the first time orally at a hearing on a summary judgment motion without any notice to the opposing party. Hansford v. Robinson, 255 Ga. 530, 340 S.E.2d 614 (1986). Premature attempt to raise bar of limitations. — Defendant’s attempt to raise the bar of the statute of limitations in appeal by the plaintiff from an automatic dismissal for lack of prosecution was premature. Stone v. Green, 163 Ga. App. 18, 293 S.E.2d 506 (1982). Written misrepresentation to obtain credit. — Former Code 1933, § 105-303 (see now O.C.G.A. § 51-6-3), providing that no action shall be sustained for deceit in representation to obtain credit from another unless the misrepresentation is a signed writing, is an affirmative defense that must be set forth in a responsive pleading or be waived. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976). Corporation’s existence. — General denial by the defendant, or denial for lack of knowledge or information, is insufficient to raise issue as to the corporation’s legal existence, and failure to raise such issue by direct negative averment results in a waiver of the defense. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970). Unconditional contracts. — This section does not require an affirmative defense for unconditional contracts in writing; a general denial of indebtedness is sufficient. Tankersley v. Security Nat’l Corp., 122 Ga. App. 129, 176 S.E.2d 274 (1970). Defense of privilege need not be affirmatively pled under subsection (c) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), nor under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9), and is sufficiently raised by a motion to dismiss. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975). Comparative negligence no longer must be affirmatively pled in response 9-11-8 to a pleading. Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969). Affirmative defense of emergency vehicle need not be pled under subsection (c) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), nor is the defense one of the special matters listed under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9). Walker v. Burke County, 149 Ga. App. 704, 256 S.E.2d 100 (1979). Immunity is not a defense which must be specifically pled under subsection (c) of O.C.G.A. § 9-11-8. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993). County was immune from a lender’s suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender’s claim that the county failed to give it notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5; immunity was not an affirmative defense, and it was the lender’s burden to show that it was waived. Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879, 756 S.E.2d 11 (2014). Motion to be dismissed as defendants, made by individuals who offered evidence to show that the owner of the vehicle whose driver was involved in an accident was a corporation, did not involve a defense which must be pled affirmatively. Calhoun v. Herrin, 125 Ga. App. 518, 188 S.E.2d 273 (1972). Waiver. — If affirmative defense is not pled, it is generally held that such defense is waived. Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972). Although a dispossessory action was improperly transferred to superior court because a default judgment stood as a final order, appellants, against whom a third-party suit was filed after the transfer, had not challenged the propriety of the transfer in superior court and thus under O.C.G.A. § 9-11-8 had waived their argument that it was improper. Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007). Defendant may not avail oneself of an affirmative defense which the defendant fails to properly present. Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 264 S.E.2d 571 (1980). Failure to plead the affirmative defense 134 of the statute of limitations for suits against developers for construction defects, as provided in O.C.G.A. § 9-3-30, results in the defense being waived. Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987). Trial court erred in finding that a jury question existed as to the issue of whether a pay-if-paid provision in a contract was waived by the general contractor because a verbal statement from an employee of the general contractor to the subcontractor was insufficient to prove a waiver of that contract provision. Vratsinas Constr. Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 739 S.E.2d 493 (2013). When failure to plead immaterial. — Failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead the defense, and no surprise is claimed. Bowers v. Howell, 203 Ga. App. 636, 417 S.E.2d 392 (1992). Late filed defense waived. — Judgment for the defendant was reversed when the defense of failure to attach an affidavit required by O.C.G.A. § 9-11-9.1 was not presented, by way of amendment to the answer, until three months after the filing of responsive pleadings, and until the statute of limitations on the underlying claim had run. Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988). Defense of sovereign immunity is not affirmative defense with respect to which the state has the burden of proof. Indeed, neither counsel for the state nor any of the state’s agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988). Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Rather, immunity from suit is a privilege that is subject to waiver by the party seeking to benefit from the waiver, such that in a wrongful death action against the Department of Human Resources, it was incumbent upon the mental health facility patient’s parents to establish the department’s waiver of immunity. Georgia Dep’t of Human Resources v. Poss, 263 Ga. 347, 434 S.E.2d 488 (1993). 9-11-8 Sovereign immunity is not an affirmative defense within the meaning of subsection (c) of O.C.G.A. § 9-11-8 in that it is not lost even if not raised in the first responsive pleading and any waiver must be established by the party benefiting from such waiver. Maxwell v. Cronan, 241 Ga. App. 491, 527 S.E.2d 1 (1999). Waiver of statute of limitations. — It is incumbent on party pleading to a preceding pleading to set forth affirmatively any statute of limitations as a defense to an action; failure to do so results in the court’s determination that this issue is not raised, even though the issue may be present and could operate as a bar to recovery. Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969). Unless defense of the statute of limitations is pled affirmatively by the defendant, the defense is waived. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 234 S.E.2d 104 (1977). When the appellant raises no affirmative defense based upon the statute of limitations, that defense is waived. Wood v. Wood, 239 Ga. 120, 236 S.E.2d 68 (1977). Plaintiff waived the defense of the statute of limitations to a counterclaim by failure to raise the issue prior to the pretrial order. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980). Under subsection (c) of O.C.G.A. § 9-11-8, the statute of limitations is an affirmative defense which must be raised at the first opportunity. It is too late to raise the defense initially in the middle of the trial. Owens v. Owens, 248 Ga. 720, 286 S.E.2d 25 (1982). Failure to raise the defense of the statute of limitation constitutes a waiver of the issue. Coleman v. Burnett, 169 Ga. App. 297, 312 S.E.2d 627 (1983). Third-party defendant waived any right that the defendant would otherwise have had to rely upon the statute of limitations and the issue could not be considered on appeal, when such defense was not raised in the answer, the motion to dismiss, or other pleading filed in the trial court. Davis v. Betsill, 178 Ga. App. 730, 344 S.E.2d 525 (1986). No waiver when defense raised by motion, special plea, or summary 135 Affirmative Defenses (Cont’d) judgment. — If affirmative defense is not pled, it is generally held that such defense is waived, but if the defense is raised by motion, by special plea in connection with the answer, or by motion for summary judgment, there is no waiver. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970); Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972). While generally defenses such as statute of limitations or laches must be affirmatively raised by written answer under subsection (c) of this section, yet when facts as to such an issue are uncontradicted, it may be disposed of by summary judgment, motion to dismiss, or motion for judgment on the pleadings. Beazley v. Williams, 231 Ga. 137, 200 S.E.2d 751 (1973). Pleading not only way to raise affirmative defense. — Language of subsection (c) of O.C.G.A. § 9-11-8 does not imply that affirmative defenses may be raised only by a pleading. Brown v. Moseley, 175 Ga. App. 282, 333 S.E.2d 162 (1985). Affirmative defense may be raised by motion. Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980). Affirmative defense is timely raised for the first time in a motion for summary judgment. Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014). Defendant may raise affirmative defense by motion for summary judgment, but only when a motion for summary judgment is the initial pleading tendered by the defendant. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976). Defense of res judicata raised by the defendant as part of the defendant’s motion for summary judgment satisfied the requirements of O.C.G.A. § 9-11-8. Hardy v.