Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 81-209, 81-211, 81-301 through 81-304, 81-501, and 81-503 are included in the annotations for this Code section.

Procedure identical to Uniform Superior Court Rules.

- Subsection (c) of O.C.G.A. § 9-11-12 refers to O.C.G.A. § 9-11-56 as giving only "reasonable opportunity to present all material" on a motion for summary judgment and subsection (d) does not include the right to oral argument except "on application." Under this interpretation, § 9-11-12 establishes a procedure identical to that of Rule 6.3 of the Uniform Superior Court Rules. Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (1986), aff'd, 256 Ga. 739, 354 S.E.2d 160 (1987).

Subject matter jurisdiction cannot be conferred by agreement or waived.

- Georgia Supreme Court disapproves language suggesting that parties can confer subject matter jurisdiction on a court by agreement or waive the defense by failing to raise the defense in the trial court. Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007).

County enjoyed immunity from negligence and nuisance claims.

- Because a county enjoyed sovereign immunity from a pedestrian's negligence and nuisance claims asserted in a personal injury action against the county for the county's alleged failure to maintain a water meter cover, the trial court properly dismissed the claims. Rutherford v. DeKalb County, 287 Ga. App. 366, 651 S.E.2d 771 (2007).

Prevention of gambling on verdict intended.

- One of the intentions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) was to prevent a party from going to trial and gambling on the verdict when a known defense to the action is available. O'Neil v. Moore, 118 Ga. App. 424, 164 S.E.2d 328 (1968).

Statute is applicable to custody cases as well as divorce cases. Hopkins v. Hopkins, 237 Ga. 845, 229 S.E.2d 751 (1976).

Applicability to negligence complaint in malpractice action.

- State court properly denied a clinic's motion to dismiss a negligence complaint which arose out of injuries a patient allegedly sustained by and through the negligence of one of the clinic's employees, as the patient was not suing for medical malpractice, the employee was not a licensed health care provider, and thus the patient was not required to file the necessary affidavit required under O.C.G.A. § 9-11-9.1. Mt. Orthopedics & Sports Med., P.C. v. Williams, 284 Ga. App. 885, 644 S.E.2d 868 (2007).

Liberal construction of pleading does not encompass imputation or engrafting to a claim of a meaning not reasonably deducible or inferable from the pleading's explicit language. Rossville Fed. Sav. & Loan Ass'n v. Insurance Co. of N. Am., 121 Ga. App. 435, 174 S.E.2d 204 (1970).

Wholesale objection insufficient.

- Wholesale objection attacking as a group several paragraphs or exhibits of a complaint is insufficient if any of the paragraphs or exhibits are not subject to the criticism made. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).

Jurisdiction and venue distinguished.

- Jurisdiction means power of court to render binding judgment in a case, and venue means place of trial. Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

"Subject matter jurisdiction" defined.

- Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not the facts are sufficient to invoke the exercise of that power. Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

"Jurisdiction of the person" defined.

- Jurisdiction of the person is the power of a court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by it in such case, and is obtained by appearance or by serving the proper process in the manner required by law on persons or parties subject to be sued in a particular action. Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

Improper venue covered by jurisdiction of the person.

- Term "jurisdiction of the person" is broad enough to cover lack of jurisdiction of the person resulting from improper venue. Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

Disposition of affirmative defenses.

- Generally, defenses such as statute of limitation or laches must be affirmatively raised by written answer, but 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 of conclusions.

- While conclusions may not generally be used in affidavits to support or oppose summary judgment motions, conclusions may generally be pled. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977); Holloway v. Dougherty County Sch. Sys., 157 Ga. App. 251, 277 S.E.2d 251 (1981).

Findings of fact and conclusions of law.

- Client's claim of a procedural defect in the trial court's handling of the client's complaint seeking to vacate an arbitration award was rejected as the trial court did not have to make findings of fact and conclusions of law pursuant to O.C.G.A. § 9-11-52(a) when ruling on an O.C.G.A. § 9-11-12(b)(6) claim; even if § 9-11-52(a) applied, the client did not request such findings of fact and conclusions of law. Durden v. Suggs, 271 Ga. App. 688, 610 S.E.2d 640 (2005).

Notice pleading requirements.

- Under "notice" theory of pleading, it is immaterial whether pleading states "conclusion" or "facts" as long as fair notice is given, and the statement of claim is short and plain. Holloway v. Dougherty County Sch. Sys., 157 Ga. App. 251, 277 S.E.2d 251 (1981).

Because the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 42 U.S.C. § 1320d et seq. (HIPAA), preempted O.C.G.A. § 9-11-9.2, a patient did not have to comply with the filing requirements of the state law prior to filing a medical malpractice action against two hospitals; hence, the trial court properly granted the patient a protective order from having to contemporaneously comply with the filing requirements of O.C.G.A. § 9-11-9.2. Crisp Reg'l Hosp., Inc. v. Sanders, 281 Ga. App. 393, 636 S.E.2d 123 (2006).

Equivalence of general demurrer and motion to dismiss.

- General demurrer and a motion to dismiss for failure to state a cause of action, orally or in writing, are equivalent pleadings, and the latter may be made at any time before the verdict. Willis v. Byrd, 116 Ga. App. 555, 158 S.E.2d 458 (1967) (decided under former Code 1933, §§ 81-301 and 81-302).

Effect of answer creating genuine issue of material fact.

- After the plaintiff filed a dispossessory warrant, the defendants answered and denied that a landlord-tenant relationship existed between the parties, and there was no evidence or admission that the plaintiff was the owner of the premises or that the defendants were on the premises without the landlord's consent, genuine issues of material fact remained as to the plaintiff's allegations that the plaintiff was the owner of the premises and that the defendants were tenants at sufferance. The trial court, therefor, erred in striking the defendants' answer, granting a judgment on the pleadings, and entering an immediate writ of possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71, cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991).

Failure to state claim.

- If the complaint fails to state a claim, dismissal is the only remedy. Gould v. Gould, 240 Ga. App. 481, 523 S.E.2d 106 (1999).

Heightened federal requirements for stating a claim inapplicable.

- When it was alleged defendant insurance agency held itself out as an expert and that the plaintiff insured had a special relationship with the agency and relied on the agency to procure the proper insurance, under Georgia law, it was possible a state court would find a claim was stated and it was error to find the agency was fraudulently joined in the suit involving the codefendant insurer and to deny remand; under Georgia's notice pleading standard, the heightened pleading requirements imposed on federal plaintiffs in Iqbal and Twombley had not been adopted and the true test was whether the pleading gave fair notice and stated the elements of the claim plainly and succinctly, and not whether as an abstract matter the pleading stated conclusions or facts. Stillwell v. Allstate Ins. Co., 663 F.3d 1329 (11th Cir. 2011).

Dismissal of action as non-justiciable upheld.

- Because city had yet to file a condemnation action against a landowner, the landowner's suit seeking a public use determination under O.C.G.A. § 22-1-11 was properly dismissed as the suit failed to present a justiciable controversy, and the city's mere inchoate intention to do so, if at all, did not give rise to a justiciable cause of action; moreover, if the appeals court construed that section to be applicable before the initiation of a condemnation action, the court would render meaningless the phrase "before the vesting of title in the condemnor," because that clarification would be redundant. Fox v. City of Cumming, 289 Ga. App. 803, 658 S.E.2d 408 (2008).

Because a provision in an agreement between a minority shareholder and a corporate officer to provide the minority shareholder with management opportunities in the corporation was invalid and unenforceable, the corporation was not a party to that agreement, and the officer entered into the contract in that officer's personal capacity, a breach of contract claim related to the agreement was properly dismissed. Levy v. Reiner, 290 Ga. App. 471, 659 S.E.2d 848 (2008).

Because the Georgia Workers' Compensation Board, and not the Health Records Act, O.C.G.A. § 31-33-3, regulated the medical photocopying charges in workers' compensation proceedings, the trial court properly dismissed a declaratory judgment complaint filed by a photocopier, which sought guidance regarding the appropriate fee structure for medical photocopying services in workers' compensation proceedings, for failure to state a claim upon which relief could be granted. Smart Document Solutions, LLC v. Hall, 290 Ga. App. 483, 659 S.E.2d 838 (2008).

Dismissal of claims held not treated as adjudication of the merits.

- Having ruled that dismissal of claims against an employee was appropriate based on insufficient service, the trial court was then without jurisdiction to rule on whether the complaint against the employee should be dismissed based on the expiration of the statute of limitations under O.C.G.A. § 9-11-12(b)(6). Thus, the dismissal could not be treated as an adjudication of the merits, and res judicata did not bar a respondeat superior claim against the employee's employer. Montague v. Godfrey, 289 Ga. App. 552, 657 S.E.2d 630 (2008).

Error in granting motion deemed waived.

- In a dispute over the use of an easement, because a landowner made no argument and cited no legal authority in support of a claim that the trial court's failure to specifically note its oral denial of a motion to dismiss in its final written order constituted an abuse of discretion, the claim was deemed abandoned under Ga. Ct. App. R. 25(c). Woodyard v. Jones, 285 Ga. App. 323, 646 S.E.2d 306 (2007).

Trial court did not err in dismissing an inmate's tort claim alleging false imprisonment and a claim under 42 U.S.C. § 1983 against the department of corrections on sovereign immunity grounds as: (1) the state was shielded from liability against a false imprisonment claim, pursuant to O.C.G.A. § 50-21-24(7); and (2) neither the state nor the department of corrections was a "person," as that term was defined under 42 U.S.C. § 1983. Watson v. Ga. Dep't of Corr., 285 Ga. App. 143, 645 S.E.2d 629 (2007).

Failure to file defensive pleadings in appeal from property evaluation.

- Appeal procedure outlined in O.C.G.A. § 48-5-311(f) does not contemplate the filing of a "complaint" or "answer," and a default judgment will not lie for failure to file defensive pleadings in a de novo hearing on appeal in the superior court from a property evaluation. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 279 S.E.2d 223 (1981).

Petition for certiorari from conviction for violation of municipal ordinance should contain provisions of ordinance.

- Because a city's petition for certiorari plainly and distinctly asserted the errors complained of, the superior court did not err in denying its motion to dismiss; moreover, the record reflected that the bar managers cited for violation of Atlanta, Ga., Code of Ordinances § 10-46 (1995) preserved the issue as to the constitutionality of the ordinance and the ordinance's enforcement. City of Atlanta v. Jones, 283 Ga. App. 125, 640 S.E.2d 698 (2006).

Payment of costs in dismissed action jurisdictional.

- Pursuant to the plain language of O.C.G.A. § 9-11-41, payment of costs in a dismissed action is not an affirmative defense but a jurisdictional matter which may never be waived. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983), (overruling McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977)); Tucker v. Mitchell, 252 Ga. 545, 314 S.E.2d 896 (1984).

Dismissal erroneously granted because: (1) an amendment to a county sign ordinance did not moot the claims for damages asserted by the contestants that arose from the county's enforcement of the ordinance; and (2) the trial court erroneously relied on a federal decision in support of granting the motion. Coffey v. Fayette County, 289 Ga. App. 153, 656 S.E.2d 262 (2008).

O.C.G.A. § 9-11-12(j) does not provide a remedy or penalty for a trial court's failure to decide a motion to dismiss within the stated time of 90 days and is merely directory; although the appellants claimed delay as a harm, the appellants did not show any specific harm that resulted from the trial court dismissing the action at a later point in time; thus, the trial court did not err in granting the motion to dismiss after the 90 days expired. Hawkins v. Blair, 334 Ga. App. 898, 780 S.E.2d 515 (2015).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Tuggle v. Manning, 224 Ga. 29, 159 S.E.2d 703 (1968); Norton Realty & Loan Co. v. City of Gainesville, 224 Ga. 166, 160 S.E.2d 819 (1968); Kerry v. Brown, 224 Ga. 200, 160 S.E.2d 832 (1968); Sherman Stubbs Realty & Ins. Co. v. American Inst. of Mktg. Sys., 117 Ga. App. 829, 162 S.E.2d 240 (1968); B-W Acceptance Corp. v. Callaway, 224 Ga. 367, 162 S.E.2d 430 (1968); Lake Spivey Parks v. Jones, 118 Ga. App. 60, 162 S.E.2d 801 (1968); Beck v. Johnston, 118 Ga. App. 541, 164 S.E.2d 342 (1968); Orkin Exterminating Co. v. Harris, 224 Ga. 759, 164 S.E.2d 727 (1968); Lowe v. Weltner, 118 Ga. App. 635, 164 S.E.2d 919 (1968); Travelers Ins. Co. v. Johnson, 118 Ga. App. 616, 164 S.E.2d 926 (1968); Hall v. Rogers, 225 Ga. 57, 165 S.E.2d 829 (1969); Parks v. Fort Oglethorpe State Bank, 225 Ga. 54, 166 S.E.2d 27 (1969); Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969); White v. Augusta Motel Hotel Inv. Co., 119 Ga. App. 351, 167 S.E.2d 161 (1969); Brown Stove Works, Inc. v. Kimsey, 119 Ga. App. 453, 167 S.E.2d 693 (1969); Knight v. William Summerlin Co., 119 Ga. App. 575, 168 S.E.2d 179 (1969); Hall v. Beecher, 225 Ga. 354, 168 S.E.2d 581 (1969); J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847 (1969); Kiker v. Hefner, 119 Ga. App. 629, 168 S.E.2d 637 (1969); Smith v. Smith, 119 Ga. App. 803, 168 S.E.2d 878 (1969); Todd v. Waddell, 120 Ga. App. 20, 169 S.E.2d 351 (1969); State Farm Mut. Auto. Ins. Co. v. Black, 120 Ga. App. 151, 169 S.E.2d 742 (1969); O'Neal Steel, Inc. v. Smith, 120 Ga. App. 106, 169 S.E.2d 827 (1969); Hines v. Wingo, 120 Ga. App. 614, 171 S.E.2d 905 (1969); Whitley v. Patrick, 226 Ga. 87, 172 S.E.2d 692 (1970); Reynolds v. Wilson, 121 Ga. App. 153, 173 S.E.2d 256 (1970); Weikert v. Logue, 121 Ga. App. 171, 173 S.E.2d 268 (1970); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970); Nobles v. H.W. Durham & Co., 121 Ga. App. 304, 173 S.E.2d 733 (1970); Bryant v. Rushing, 121 Ga. App. 430, 174 S.E.2d 226 (1970); Feldman v. Whipkey's Drug Shop, 121 Ga. App. 580, 174 S.E.2d 474 (1970); Jones v. Itson, 121 Ga. App. 759, 175 S.E.2d 43 (1970); Goodwin v. First Baptist Church, 226 Ga. 524, 175 S.E.2d 868 (1970); Morgan v. White, 121 Ga. App. 794, 175 S.E.2d 878 (1970); Kirkland v. Jones, 122 Ga. App. 131, 176 S.E.2d 510 (1970); Sing Recording Co. v. LeFevre Sound Studios, Inc., 122 Ga. App. 327, 176 S.E.2d 657 (1970); Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970); Smith v. Merchants & Farmers Bank, 226 Ga. 715, 177 S.E.2d 249 (1970); Kazakos v. Baranan, 122 Ga. App. 594, 178 S.E.2d 222 (1970); Action Indus., Inc. v. Redisco, Inc., 122 Ga. App. 754, 178 S.E.2d 735 (1970); Dodson v. Phagan, 122 Ga. App. 752, 178 S.E.2d 748 (1970); Kilgo v. Keaton, 227 Ga. 563, 181 S.E.2d 821 (1971); Goodwin v. First Baptist Church, 227 Ga. 603, 182 S.E.2d 105 (1971); Fireman's Fund Ins. Co. v. Northern Freight Lines, 227 Ga. 581, 182 S.E.2d 110 (1971); Wisenbaker v. Wisenbaker, 227 Ga. 610, 182 S.E.2d 114 (1971); Clark v. Lett & Barron, Inc., 227 Ga. 609, 182 S.E.2d 118 (1971); Leathers v. Klebold, 227 Ga. 683, 182 S.E.2d 423 (1971); Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971); Arthur Murray, Inc. v. Smith, 124 Ga. App. 51, 183 S.E.2d 66 (1971); Grafton v. Turner, 227 Ga. 809, 183 S.E.2d 458 (1971); Miller v. Alderhold, 228 Ga. 65, 184 S.E.2d 172 (1971); Georgia Farm Bureau Mut. Ins. Co. v. Williamson, 124 Ga. App. 549, 184 S.E.2d 665 (1971); Dampier v. Bank of Alapaha, 124 Ga. App. 618, 184 S.E.2d 693 (1971); Griggs v. Louisville & Nashville R.R., 124 Ga. App. 629, 185 S.E.2d 546 (1971); Lee v. Peck, 228 Ga. 448, 186 S.E.2d 94 (1971); Duvall v. Duvall, 124 Ga. App. 853, 186 S.E.2d 367 (1971); Chicago Title Ins. Co. v. Nash, 228 Ga. 719, 187 S.E.2d 662 (1972); Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972); Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269 (1972); Thompson v. Frost, 125 Ga. App. 753, 188 S.E.2d 905 (1972); Gamble v. Reeves Transp. Co., 126 Ga. App. 161, 190 S.E.2d 95 (1972); Stroud v. Willingham, 126 Ga. App. 156, 190 S.E.2d 143 (1972); Hatcher v. Hatcher, 229 Ga. 249, 190 S.E.2d 533 (1972); Miller v. Columbus, 229 Ga. 234, 190 S.E.2d 535 (1972); Butts v. Davis, 126 Ga. App. 311, 190 S.E.2d 595 (1972); Hinton v. Georgia Power Co., 126 Ga. App. 416, 190 S.E.2d 811 (1972); Frost v. Gasaway, 229 Ga. 354, 190 S.E.2d 902 (1972); Brown v. Edwards, 229 Ga. 345, 191 S.E.2d 47 (1972); Scardina v. Scardina, 229 Ga. 341, 191 S.E.2d 52 (1972); Barrett v. City of Perry, 229 Ga. 267, 191 S.E.2d 74 (1972); Peckham v. Metro Steel Co., 126 Ga. App. 685, 191 S.E.2d 559 (1972); McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972); Kinlock v. State Hwy. Dep't, 127 Ga. App. 847, 195 S.E.2d 459 (1973); West v. Forehand, 128 Ga. App. 124, 195 S.E.2d 777 (1973); Aiken v. Bynum, 129 Ga. App. 212, 196 S.E.2d 180 (1973); Greer v. Lifsey, 128 Ga. App. 785, 197 S.E.2d 846 (1973); Courson v. Atkinson & Griffin, Inc., 230 Ga. 643, 198 S.E.2d 675 (1973); Taylor v. Malden Trust Co., 129 Ga. App. 330, 199 S.E.2d 553 (1973); Hodges v. Youmans, 129 Ga. App. 481, 200 S.E.2d 157 (1973); Pope v. Cokinos, 231 Ga. 79, 200 S.E.2d 275 (1973); Decker v. Hope, 129 Ga. App. 553, 200 S.E.2d 290 (1973); Moore v. Moore, 231 Ga. 232, 201 S.E.2d 133 (1973); Larwin Mtg. Investors v. Delta Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973); Lee v. G.A.C. Fin. Corp., 130 Ga. App. 44, 202 S.E.2d 221 (1973); Interstate Life & Accident Ins. Co. v. Densley, 130 Ga. App. 70, 202 S.E.2d 463 (1973); Zachery v. Geiger Fin. Co., 130 Ga. App. 243, 202 S.E.2d 689 (1973); Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973); Register v. Kandlbinder, 231 Ga. 786, 204 S.E.2d 145 (1974); Whitehurst v. Universal C.I.T. Credit Corp., 131 Ga. App. 202, 205 S.E.2d 489 (1974); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498, 206 S.E.2d 101 (1974); King v. Paramount Enters., Inc., 131 Ga. App. 707, 206 S.E.2d 604 (1974); Early Co. v. Bristol Steel & Iron Works, Inc., 131 Ga. App. 775, 206 S.E.2d 612 (1974); Walker v. Anderson, 131 Ga. App. 596, 206 S.E.2d 833 (1974); Bradberry v. Bradberry, 232 Ga. 651, 208 S.E.2d 469 (1974); Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622, 208 S.E.2d 628 (1974); Axelroad v. Preston, 232 Ga. 836, 209 S.E.2d 178 (1974); Barrett v. Barrett, 232 Ga. 840, 209 S.E.2d 181 (1974); Irby v. Christian, 132 Ga. App. 796, 209 S.E.2d 245 (1974); Burkhead v. Trustees, Firemen's Pension Fund, 133 Ga. App. 41, 209 S.E.2d 651 (1974); Rainwater v. Vazquez, 133 Ga. App. 173, 210 S.E.2d 380 (1974); Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974); Smith v. Wheeler, 233 Ga. 166, 210 S.E.2d 702 (1974); Friedman v. Friedman, 233 Ga. 254, 210 S.E.2d 754 (1974); Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974); Carlson v. Hall County Planning Comm'n, 233 Ga. 286, 210 S.E.2d 815 (1974); Watts v. Kegler, 133 Ga. App. 231, 211 S.E.2d 177 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Howland v. Weeks, 133 Ga. App. 843, 212 S.E.2d 487 (1975); Chancey v. Hancock, 233 Ga. 734, 213 S.E.2d 633 (1975); Redi Dev. Co. v. Crabble Pavers, Inc., 134 Ga. App. 659, 215 S.E.2d 714 (1975); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 216 S.E.2d 659 (1975); Evans v. Goodyear Tire & Rubber Co., 135 Ga. App. 75, 217 S.E.2d 318 (1975); American Fin. Co. v. First Nat'l Bank, 134 Ga. App. 24, 217 S.E.2d 364 (1975); Rainwater v. Vazquez, 135 Ga. App. 463, 218 S.E.2d 108 (1975); S.D.H. Co. v. Stewart, 135 Ga. App. 505, 218 S.E.2d 268 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Mitchell v. Mitchell, 235 Ga. 101, 218 S.E.2d 747 (1975); Tax Assessors v. Chitwood, 235 Ga. 147, 218 S.E.2d 759 (1975); Capes v. Morgan, 235 Ga. 1, 218 S.E.2d 764 (1975)

Davis v. National Indem. Co., 135 Ga. App. 793, 219 S.E.2d 32 (1975); Carvel Corp. v. Rabey, 135 Ga. App. 856, 219 S.E.2d 475 (1975); Kitson v. Hawke, 136 Ga. App. 92, 220 S.E.2d 28 (1975); Metropolitan Atlanta Rapid Transit Auth. v. Datry, 235 Ga. 568, 220 S.E.2d 905 (1975); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Massey v. Government Employees Co., 136 Ga. App. 377, 221 S.E.2d 238 (1975); National Indem. Co. v. Berry, 136 Ga. App. 545, 221 S.E.2d 624 (1975); Scata v. Pinnicle Enters., Inc., 136 Ga. App. 451, 221 S.E.2d 660 (1975); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Filsoof v. West, 235 Ga. 818, 221 S.E.2d 811 (1976); Rowland v. Kellos, 236 Ga. 799, 225 S.E.2d 302 (1976); Eder v. American Express Co., 138 Ga. App. 168, 225 S.E.2d 737 (1976); Reading Assocs., Ltd. v. Reading Assocs. of Ga., Inc., 236 Ga. 906, 225 S.E.2d 899 (1976); Shepherd Constr. Co. v. State Hwy. Dep't, 138 Ga. App. 252, 226 S.E.2d 79 (1976); Dargan, Whitington & Conner, Inc. v. Kitchen, 138 Ga. App. 414, 226 S.E.2d 482 (1976); Video Entertainment, Inc. v. Cartridge Rental Network, 138 Ga. App. 540, 226 S.E.2d 794 (1976); Shellenberger v. Tanner, 138 Ga. App. 399, 227 S.E.2d 266 (1976); Stewman v. Magley, 138 Ga. App. 545, 227 S.E.2d 277 (1976); National Bank & Trust Co. v. Grant, 237 Ga. 337, 227 S.E.2d 372 (1976); Pascoe Steel Corp. v. Turner County Bd. of Educ., 139 Ga. App. 87, 227 S.E.2d 887 (1976); Carroll v. Carroll, 237 Ga. 441, 228 S.E.2d 832 (1976); Wirt v. Metropolitan Atlanta Rapid Transit Auth., 139 Ga. App. 592, 229 S.E.2d 100 (1976); Smith v. Security Mtg. Investors, 139 Ga. App. 635, 229 S.E.2d 115 (1976); Brock v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 140 Ga. App. 110, 230 S.E.2d 37 (1976); Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 140 Ga. App. 501, 231 S.E.2d 361 (1976); DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977); Bullock v. Grogan, 141 Ga. App. 40, 232 S.E.2d 605 (1977); Burgess v. Clermont Properties, Inc., 141 Ga. App. 112, 232 S.E.2d 627 (1977); Moore v. First Nat'l Bank, 141 Ga. App. 164, 233 S.E.2d 26 (1977); C & S Land, Transp. & Dev. Corp. v. Grubbs, 141 Ga. App. 393, 233 S.E.2d 486 (1977); George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779 (1977); Lankford v. Trust Co. Bank, 141 Ga. App. 639, 234 S.E.2d 179 (1977); Wachstein v. Citizens & S. Nat'l Bank, 142 Ga. App. 23, 234 S.E.2d 828 (1977); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); Shepherd v. Shepherd, 239 Ga. 22, 235 S.E.2d 538 (1977); Aycock v. HFC, 142 Ga. App. 207, 235 S.E.2d 578 (1977); Adams v. Upjohn Co., 142 Ga. App. 264, 235 S.E.2d 584 (1977); Harbin Lumber Co. v. Fowler, 142 Ga. App. 167, 235 S.E.2d 638 (1977); Jesup Carpet Factory Outlet, Inc. v. Ken Carpets of LaGrange, Inc., 142 Ga. App. 301, 235 S.E.2d 684 (1977); Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127, 236 S.E.2d 73 (1977); Rothstein v. First Nat'l Bank, 239 Ga. 216, 236 S.E.2d 350 (1977); Grossman v. Glass, 239 Ga. 319, 236 S.E.2d 657 (1977); Hatcher v. Hancock County Comm'rs of Rds. & Revenues, 239 Ga. 229, 236 S.E.2d 577 (1977); Moore v. Trust Co. Bank, 142 Ga. App. 877, 237 S.E.2d 471 (1977); Jones v. Associated Indem. Corp., 143 Ga. App. 139, 237 S.E.2d 651 (1977); Lowry v. Lomire, 143 Ga. App. 479, 238 S.E.2d 594 (1977); Green v. Decatur Fed. Sav. & Loan Ass'n, 143 Ga. App. 368, 238 S.E.2d 740 (1977); North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977); Hill v. Hill, 143 Ga. App. 549, 239 S.E.2d 154 (1977); Gregson v. Webb, 143 Ga. App. 577, 239 S.E.2d 230 (1977); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977); Hutchinson Homes, Inc. v. Guerdon Indus., Inc., 143 Ga. App. 664, 239 S.E.2d 553 (1977); Davis v. South Carolina Ins. Co., 143 Ga. App. 782, 240 S.E.2d 191 (1977); Snooty Fox, Inc. v. First Am. Inv. Corp., 144 Ga. App. 264, 241 S.E.2d 47 (1977); Hobgood v. Black, 144 Ga. App. 448, 241 S.E.2d 60 (1978); Staten v. Staten, 240 Ga. 478, 241 S.E.2d 237 (1978); Groomes v. Whitner, 144 Ga. App. 530, 241 S.E.2d 604 (1978); Mercury Rising, Inc. v. Gwinnett Bank & Trust Co., 144 Ga. App. 502, 241 S.E.2d 620 (1978); Scroggins v. Harper, 144 Ga. App. 548, 241 S.E.2d 648 (1978); Retail Union Health & Welfare Fund v. Seabrum, 240 Ga. 695, 242 S.E.2d 18 (1978); Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978); Prudential Timber & Farm Co. v. Collins, 144 Ga. App. 849, 243 S.E.2d 80 (1978); Barber v. Adams, 145 Ga. App. 627, 244 S.E.2d 149 (1978); Johnson v. Allstate Ins. Co., 241 Ga. 234, 244 S.E.2d 851 (1978); Hill v. Davis, 241 Ga. 233, 244 S.E.2d 852 (1978); Whitby v. Maloy, 145 Ga. App. 785, 245 S.E.2d 5 (1978); King v. Ellis, 146 Ga. App. 157, 246 S.E.2d 1 (1978); Olvey v. Citizens & S. Bank, 146 Ga. App. 484, 246 S.E.2d 485 (1978); Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978); Irwin v. Busbee, 241 Ga. 567, 247 S.E.2d 103 (1978); Metric Steel Co. v. BLI Constr. Co., 147 Ga. App. 380, 249 S.E.2d 121 (1978); Keith v. McLanahan, 147 Ga. App. 342, 249 S.E.2d 128 (1978); Hood v. Hood, 242 Ga. 581, 250 S.E.2d 455 (1978); Tingle v. Georgia Power Co., 147 Ga. App. 775, 250 S.E.2d 497 (1978); City Express Serv., Inc. v. Rich's, Inc., 148 Ga. App. 123, 250 S.E.2d 867 (1978); Wilson v. Betsill, 148 Ga. App. 260, 251 S.E.2d 144 (1978); Hough v. Johnson, 242 Ga. 698, 251 S.E.2d 288 (1978); United States Indus., Inc. v. Mitchell, 148 Ga. App. 770, 252 S.E.2d 672 (1979); Parker v. Ryder Truck Lines, 150 Ga. App. 163, 257 S.E.2d 18 (1979); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); Gordon v. Gordon, 244 Ga. 21, 257 S.E.2d 528 (1979); Signal Knitting Mills, Inc. v. Roozen, 150 Ga. App. 552, 258 S.E.2d 261 (1979); Hasty v. Randall, 152 Ga. App. 365, 262 S.E.2d 626 (1979); Lanning v. Lanning, 245 Ga. 19, 262 S.E.2d 788 (1980); Smith v. Conley, 152 Ga. App. 589, 263 S.E.2d 453 (1979); Concerned Sch. Patrons & Taxpayers v. Ware County Bd. of Educ., 245 Ga. 202, 263 S.E.2d 925 (1980); Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980); Sambo's of Ga., Inc. v. First Am. Nat'l Bank, 152 Ga. App. 899, 264 S.E.2d 330 (1980); Smith v. Commercial Union Assurance Co., 153 Ga. App. 38, 264 S.E.2d 530 (1980); Lynn v. Taylor, 153 Ga. App. 424, 265 S.E.2d 344 (1980); Atlas Aviation, Inc. v. Hungate, 153 Ga. App. 517, 265 S.E.2d 851 (1980); Coates v. Doss, 153 Ga. App. 560, 265 S.E.2d 881 (1980); Lee v. National Bank & Trust Co., 153 Ga. App. 656, 266 S.E.2d 315 (1980); Windjammer Assocs. v. Hodge, 153 Ga. App. 758, 266 S.E.2d 540 (1980); Patron Aviation, Inc. v. Teledyne Indus., Inc., 154 Ga. App. 13, 267 S.E.2d 274 (1980); Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980); Goodman v. City of Atlanta, 246 Ga. 79, 268 S.E.2d 663 (1980); Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474, 268 S.E.2d 686 (1980); Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980); Jankowski v. Taylor, 154 Ga. App. 752, 269 S.E.2d 871 (1980); Slaughter v. Faust, 155 Ga. App. 68, 270 S.E.2d 218 (1980); Ellison v. William Huff Ford, Inc., 155 Ga. App. 108, 270 S.E.2d 327 (1980); Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980); Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981); Newport Timber Corp. v. Floyd, 247 Ga. 535, 277 S.E.2d 646 (1981); Sigmon v. Womack, 158 Ga. App. 47, 279 S.E.2d 254 (1981); Thaxton v. Georgia Insurer's Insolvency Pool, 158 Ga. App. 407, 280 S.E.2d 421 (1981); Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 281 S.E.2d 332 (1981); Black v. Lowry, 159 Ga. App. 57, 282 S.E.2d 700 (1981); Southeastern Fid. Ins. Co. v. Tesler, 159 Ga. App. 60, 282 S.E.2d 703 (1981); GMAC v. Yates Motor Co., 159 Ga. App. 215, 283 S.E.2d 74 (1981); Setac Corp. v. W.P. Stephens Lumber Co., 159 Ga. App. 285, 283 S.E.2d 351 (1981); Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981); Deck v. Zoning Bd. of Appeals, 159 Ga. App. 402, 283 S.E.2d 612 (1981); Greer v. Heim, 248 Ga. 417, 284 S.E.2d 11 (1981); Randall v. Dyche, 248 Ga. 438, 284 S.E.2d 18 (1981)

Durdin v. Taylor, 159 Ga. App. 675, 285 S.E.2d 51 (1981); Phillips v. Phillips, 159 Ga. App. 676, 285 S.E.2d 52 (1981); Evans v. Montgomery Elevator Co., 159 Ga. App. 834, 285 S.E.2d 263 (1981); Ledford v. Bowers, 248 Ga. 804, 286 S.E.2d 293 (1982); Dillard v. Fussell, 160 Ga. App. 382, 287 S.E.2d 96 (1981); Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459, 288 S.E.2d 711 (1982); Smith v. Deller, 161 Ga. App. 112, 288 S.E.2d 825 (1982); Smith v. Hartford Fire Ins. Co., 162 Ga. App. 26, 289 S.E.2d 520 (1982); Dodson v. Earley, 161 Ga. App. 666, 290 S.E.2d 105 (1982); Brown v. Hauser, 249 Ga. 513, 292 S.E.2d 1 (1982); Troop Constr. Corp. v. Davis, 249 Ga. 830, 294 S.E.2d 503 (1982); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982); Crowe, Carter & Assocs. v. Hyde, 163 Ga. App. 816, 295 S.E.2d 353 (1982); Cato Oil & Grease Co. v. Lewis, 250 Ga. 24, 295 S.E.2d 527 (1982); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Georgia Farm Bureau Mut. Ins. Co. v. Ritchie, 165 Ga. App. 298, 300 S.E.2d 550 (1983); Whatley v. Blue Cross of Ga./Columbus, Inc., 165 Ga. App. 340, 301 S.E.2d 60 (1983); Brumit v. Mull, 165 Ga. App. 663, 302 S.E.2d 408 (1983); Bingham, Ltd. v. Tool Technology, Inc., 166 Ga. App. 220, 303 S.E.2d 761 (1983); Purcell v. C. Goldstein & Sons, 166 Ga. App. 547, 305 S.E.2d 10 (1983); Carpenters Local 1977 v. General Ins. Co. of Am., 167 Ga. App. 299, 306 S.E.2d 383 (1983); Partridge v. Partridge, 167 Ga. App. 716, 307 S.E.2d 524 (1983); Banks v. Borg-Warner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54 (1983); Atlanta Cutlery Corp. v. Queen Cutlery Co., 168 Ga. App. 584, 309 S.E.2d 691 (1983); Wallis v. Trustees, Sugar Hill United Methodist Church, 252 Ga. 51, 310 S.E.2d 915 (1984); Thigpen v. Johnson, 169 Ga. App. 410, 313 S.E.2d 121 (1984); Hammer Clinic v. Crawley, 169 Ga. App. 520, 313 S.E.2d 778 (1984); Taylor v. Mosley, 252 Ga. 325, 314 S.E.2d 184 (1984); Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 314 S.E.2d 199 (1984); Bragg v. Sirockman, 169 Ga. App. 643, 314 S.E.2d 478 (1984); Lee v. Pace, 252 Ga. 546, 315 S.E.2d 417 (1984); Vaughan v. Vaughan, 253 Ga. 76, 317 S.E.2d 201 (1984); Lance v. Safwat, 170 Ga. App. 694, 318 S.E.2d 86 (1984); Flanders v. Georgia Farm Bureau Mut. Ins. Co., 171 Ga. App. 188, 318 S.E.2d 794 (1984); Stinson v. Georgia Dep't of Human Resources Credit Union, 171 Ga. App. 303, 319 S.E.2d 508 (1984); Jones v. Conlin, 171 Ga. App. 346, 320 S.E.2d 188 (1984); Williams v. Heykow, Inc., 171 Ga. App. 936, 321 S.E.2d 431 (1984); Regency Club v. Stuckey, 253 Ga. 583, 324 S.E.2d 166 (1984); Cronic v. State, 172 Ga. App. 675, 324 S.E.2d 533 (1984); Echevarria v. Hudgins, 173 Ga. App. 39, 325 S.E.2d 423 (1984); Cotton States Mut. Ins. Co. v. Neese, 173 Ga. App. 62, 325 S.E.2d 431 (1984); Capital Assocs. v. Keoho, 173 Ga. App. 627, 327 S.E.2d 586 (1985); Baker v. Wulf, 173 Ga. App. 674, 327 S.E.2d 796 (1985); Goff v. Goff, 254 Ga. 269, 328 S.E.2d 704 (1985); Citizens Bank v. Hooks, 173 Ga. App. 865, 328 S.E.2d 755 (1985); Rasmussen v. Nodvin, 174 Ga. App. 203, 329 S.E.2d 541 (1985); Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 334 S.E.2d 219 (1985); All-Georgia Dev., Inc. v. Kadis, 178 Ga. App. 37, 341 S.E.2d 885 (1986); Pascavage v. Can-Do, Inc., 178 Ga. App. 566, 344 S.E.2d 261 (1986); Mack v. Smith, 178 Ga. App. 652, 344 S.E.2d 474 (1986); Jackson v. Southern Bell Tel. & Tel. Co., 178 Ga. App. 673, 344 S.E.2d 495 (1986); Sun v. Bush, 179 Ga. App. 140, 345 S.E.2d 873 (1986); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Freeman v. Nodvin, 181 Ga. App. 663, 353 S.E.2d 546 (1987); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760, 360 S.E.2d 29 (1987); Sofet v. Roberts, 185 Ga. App. 451, 364 S.E.2d 595 (1987); Behar v. Aero Med Int'l, Inc., 185 Ga. App. 845, 366 S.E.2d 223 (1988); Newell v. Brown, 187 Ga. App. 9, 369 S.E.2d 499 (1988); MacDonald v. Vasselin, 188 Ga. App. 467, 373 S.E.2d 221 (1988); Murphy v. American Civil Liberties Union of Ga., Inc., 258 Ga. 637, 373 S.E.2d 364 (1988); Latimore v. International Bus. Invs., Inc., 189 Ga. App. 306, 375 S.E.2d 507 (1988); Law v. Lowe, 191 Ga. App. 434, 382 S.E.2d 118 (1989); Pettus v. Paylay, Frank & Brown, 193 Ga. App. 335, 387 S.E.2d 613 (1989); Torok v. Yost, 194 Ga. App. 94, 389 S.E.2d 793 (1989); Mann Elec. Co. v. Webco S. Corp., 194 Ga. App. 541, 390 S.E.2d 905 (1990); United States Xpress, Inc. v. W. Timothy Askey & Co., 194 Ga. App. 730, 391 S.E.2d 707 (1990); Wallace v. Meyer, 260 Ga. 253, 394 S.E.2d 350 (1990); Porter v. State, 196 Ga. App. 31, 395 S.E.2d 360 (1990); Economou v. Economou, 196 Ga. App. 196, 395 S.E.2d 830 (1990); Barrett v. Wharton, 196 Ga. App. 688, 396 S.E.2d 603 (1990); Whitley v. Hsu, 260 Ga. 539, 397 S.E.2d 694 (1990); Hodge Residential, Inc. v. Bankers First Fed. Savs. & Loan Ass'n, 199 Ga. App. 474, 405 S.E.2d 302 (1991); In re S.K.L., 199 Ga. App. 731, 405 S.E.2d 903 (1991); Battallia v. City of Columbus, 199 Ga. App. 897, 406 S.E.2d 290 (1991); Thomas v. Mayor of Waycross, 200 Ga. App. 166, 407 S.E.2d 57 (1991); Gray v. McKenna, 202 Ga. App. 685, 415 S.E.2d 295 (1992); Floyd v. First Union Nat'l Bank, 203 Ga. App. 788, 417 S.E.2d 725 (1992); Hill v. McGarity, 205 Ga. App. 850, 424 S.E.2d 62 (1992); Lewis v. Jarvis, 207 Ga. App. 246, 427 S.E.2d 596 (1993); Arnold v. McKibbins, 210 Ga. App. 262, 435 S.E.2d 685 (1993); Burnette v. McCarter, 211 Ga. App. 781, 440 S.E.2d 488 (1994); Maxwell v. City of Chamblee, 212 Ga. App. 135, 441 S.E.2d 257 (1994); In re Farmer, 212 Ga. App. 372, 442 S.E.2d 251 (1994); Taeger Enters., Inc. v. Herdlein Technologies, Inc., 213 Ga. App. 740, 445 S.E.2d 848 (1994); Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994); Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995); Hallisy v. Snyder, 219 Ga. App. 128, 464 S.E.2d 219 (1995); Frasure v. Calhoun, 221 Ga. App. 272, 471 S.E.2d 57 (1996); Wright v. Swint, 224 Ga. App. 417, 480 S.E.2d 878 (1997); Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, 493 S.E.2d 143 (1997); NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Roberson v. Gnann, 235 Ga. App. 112, 508 S.E.2d 480 (1998); Yeremian v. Ellis, 239 Ga. App. 805, 521 S.E.2d 596 (1999); Canberg v. City of Toccoa, 245 Ga. App. 75, 535 S.E.2d 854 (2000); Bakhtiarnejad v. Cox Enters., 247 Ga. App. 205, 541 S.E.2d 33 (2000); Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000); Schafer v. Wachovia Bank of Ga., N.A., 248 Ga. App. 466, 546 S.E.2d 846 (2001); Associated Doctors of Warner Robins, Inc. v. U.S. Foodservice of Atlanta, Inc., 250 Ga. App. 878, 553 S.E.2d 310 (2001); Wiggins v. Bd. of Comm'rs, 258 Ga. App. 666, 574 S.E.2d 874 (2002); Studenic v. Birk, 260 Ga. App. 364, 579 S.E.2d 788 (2003); Mitchell v. Gilwil Group, Inc., 261 Ga. App. 882, 583 S.E.2d 911 (2003); Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003); Smith v. debis Fin. Servs., 263 Ga. App. 212, 587 S.E.2d 390 (2003); Bd. of Regents v. Oglesby, 264 Ga. App. 602, 591 S.E.2d 417 (2003); Deere & Co. v. JPS Dev., Inc., 264 Ga. App. 672, 592 S.E.2d 175 (2003); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004); Newcomer v. Newcomer, 278 Ga. 776, 606 S.E.2d 238 (2004); Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277, 628 S.E.2d 697 (2006); Hammack v. Hammack, 281 Ga. 202, 635 S.E.2d 752 (2006); Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006); Walker County v. Tri-State Crematory, 284 Ga. App. 34, 643 S.E.2d 324 (2007); Murray v. Ga. DOT, 284 Ga. App. 263, 644 S.E.2d 290 (2007); Hall v. Nelson, 282 Ga. 441, 651 S.E.2d 72 (2007); Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007); City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007); DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007); Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008)

Spinner v. City of Dallas, 292 Ga. App. 251, 663 S.E.2d 815 (2008); Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008); Avion Sys. v. Thompson, 293 Ga. App. 60, 666 S.E.2d 464 (2008); Bullington v. Blakely Crop Hail, Inc., 294 Ga. App. 147, 668 S.E.2d 732 (2008); Liu v. Boyd, 294 Ga. App. 224, 668 S.E.2d 843 (2008); Acevedo v. Kim, 284 Ga. 629, 669 S.E.2d 127 (2008); Savage v. E. R. Snell Contr., Inc., 295 Ga. App. 319, 672 S.E.2d 1 (2008); Houston v. Phoebe Putney Mem. Hosp., Inc., 295 Ga. App. 674, 673 S.E.2d 54 (2009); Ellison v. Southstar Energy Servs., LLC, 298 Ga. App. 170, 679 S.E.2d 750 (2009); Neely v. City of Riverdale, 298 Ga. App. 884, 681 S.E.2d 677 (2009); Old Republic Nat'l Title Ins. Co. v. Atty. Title Servs., 299 Ga. App. 6, 682 S.E.2d 134 (2009); Herring v. Harvey, 300 Ga. App. 560, 685 S.E.2d 460 (2009); Alexander v. Hulsey Envtl. Servs., 306 Ga. App. 459, 702 S.E.2d 435 (2010); Bishop v. Patton, 288 Ga. 600, 706 S.E.2d 634 (2011); Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011); Jones v. Allen, 312 Ga. App. 762, 720 S.E.2d 1 (2011); Laurel Baye Healthcare of Macon, LLC v. Neubauer, 315 Ga. App. 474, 726 S.E.2d 670 (2012); Marietta Props. LLC v. City of Marietta, 319 Ga. App. 184, 732 S.E.2d 102 (2012); Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457 (2012); Reinhardt Univ. v. Castleberry, 318 Ga. App. 416, 734 S.E.2d 117 (2012); Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 740 S.E.2d 635 (2012), overruled on other grounds, 322 Ga. App. 859 (2013); Amica Mut. Ins. Co. v. Gwinnett County Police Dep't, 319 Ga. App. 780, 738 S.E.2d 622 (2013); Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013); Hagan v. Ga. DOT, 321 Ga. App. 472, 739 S.E.2d 123 (2013); Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013); Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 743 S.E.2d 518 (2013); Superior Roofing Co. of Ga., Inc. v. Am. Prof'l Risk Servs., 323 Ga. App. 416, 744 S.E.2d 400 (2013); Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 744 S.E.2d 369 (2013); Ga. Dep't of Corr. v. Couch, 322 Ga. App. 234, 744 S.E.2d 432 (2013); Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); Walker v. Gowen Stores LLC, 322 Ga. App. 376, 745 S.E.2d 287 (2013); Radio Perry, Inc. v. Cox Communs., Inc., 323 Ga. App. 604, 746 S.E.2d 670 (2013); Artson, LLC v. Hudson, 322 Ga. App. 859, 747 S.E.2d 68 (2013); Benfield v. Wells, 324 Ga. App. 85, 749 S.E.2d 384 (2013); City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013); Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655 (2014); Austin v. Clark, 294 Ga. 773, 755 S.E.2d 796 (2014); Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309, 759 S.E.2d 49 (2014); Phillips v. Harmon, 328 Ga. App. 686, 760 S.E.2d 235 (2014), aff'd in part and rev'd on other grounds, 297 Ga. 386, 774 S.E.2d 596 (2015), vacated on other grounds, 335 Ga. App. 450, 780 S.E.2d 914 (2015); Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508, 767 S.E.2d 513 (2014); City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015); Brazeal v. NewPoint Media Group, LLC, 331 Ga. App. 49, 769 S.E.2d 763 (2015); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015); Thomas v. Gregory, 332 Ga. App. 286, 772 S.E.2d 382 (2015); Considine v. Murphy, 297 Ga. 164, 773 S.E.2d 176 (2015); Ramsey v. New Times Moving, Inc., 332 Ga. App. 555, 774 S.E.2d 134 (2015); Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826, 780 S.E.2d 689 (2015), cert. denied, No. S16C0502, 2016 Ga. LEXIS 286 (Ga. 2016); PLIVA, Inc. v. Dement, 335 Ga. App. 398, 780 S.E.2d 735 (2015); Belcher v. Belcher, 298 Ga. 333, 782 S.E.2d 2 (2016); Hughes v. Cornerstone Inspection Grp., Inc., 336 Ga. App. 283, 784 S.E.2d 116 (2016); Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 785 S.E.2d 8 (2016); McConnell v. Department of Labor, 337 Ga. App. 457, 787 S.E.2d 794 (2016); Grant v. Ga. Forestry Comm'n, 338 Ga. App. 146, 789 S.E.2d 343 (2016), cert. denied, No. S17C0003, 2017 Ga. LEXIS 127 (Ga. 2017); cert. denied, No. S17C0037, 2017 Ga. LEXIS 153 (Ga. 2017); Campbell v. Ailion, 338 Ga. App. 382, 790 S.E.2d 68 (2016); Wegman v. Wegman, 338 Ga. App. 648, 791 S.E.2d 431 (2016); Harris v. Deutsche Bank Nat'l Trust Co., 338 Ga. App. 838, 792 S.E.2d 111 (2016); Practice Benefits, LLC v. Entera Holdings, LLC, 340 Ga. App. 378, 797 S.E.2d 250 (2017); Schroeder v. DeKalb County, 341 Ga. App. 748, 802 S.E.2d 277 (2017); Ga. Ports Authority v. Lawyer, 342 Ga. App. 161, 803 S.E.2d 94 (2017); Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Comm'rs, 302 Ga. 284, 806 S.E.2d 561 (2017); Osprey Cove Real Estate, LLC v. Towerview Constr., LLC, 343 Ga. App. 436, 808 S.E.2d 425 (2017); Liberty Mut. Fire Ins. Co. v. Quiroga-Saenz, 343 Ga. App. 494, 807 S.E.2d 460 (2017); Healthy-IT, LLC v. Agrawal, 343 Ga. App. 660, 808 S.E.2d 876 (2017); Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018); Valley v. S. Atl. Conf. of Seventh-day Adventist, Ga. App. , S.E.2d (July 31, 2018).

90-day time limit for ruling on motion was merely directory.

- Although motions to dismiss a condominium unit owner's complaint were filed on April 26, 2012 and May 11, 2012, and the trial court did not rule on either motion to dismiss until February 6, 2013, well beyond the 90-day time specified in O.C.G.A. § 9-11-12(j), because the statute did not provide for any sanction or negative consequence for a failure of the trial court to rule within that time period, the limitation was to be read as merely directory. Headrick v. Stonepark of Dunwoody Unit Owners Ass'n, 331 Ga. App. 772, 771 S.E.2d 382 (2015).

Responsive pleadings in quo warranto proceeding.

- Because the special statutory proceeding known as quo warranto does not prescribe special rules of practice or procedure with relation to the time of filing defensive pleadings, the question of whether responsive pleadings must be filed is controlled by O.C.G.A. § 9-11-12. Anderson v. Flake, 270 Ga. 141, 508 S.E.2d 650 (1998).

Purpose of an answer is to formulate issues by means of defenses addressed to allegations of the complaint. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

Answer primarily a vehicle for denial.

- Answer, under both present and former law, is primarily vehicle for denial. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

Defenses as well as denials permitted in answer.

- Chief change made by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) with regard to the answer is that an answer may now incorporate defenses other than mere denial of allegations. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

Meaning of "unless otherwise provided by statute".

- Language "unless otherwise provided by statute" in subsection (a) of this section refers to other laws or statutes of this state relating to a particular type of proceeding or action which might specify a different appearance day or time for filing a responsive pleading, and not to local practice rules provided in various statutes creating county civil courts. Crosby v. Dixie Metal Co., 124 Ga. App. 169, 183 S.E.2d 59 (1971).

Phrase "otherwise provided by statute" in subsection (a) of this section relates to such special statutory proceedings (quo warranto, mandamus, etc.) as may prescribe specific rules of practice and procedure with relation to time of filing defensive pleadings which are different from the 30 days permitted under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), and not to local practice rules provided in various statutes creating such courts as the Civil and Criminal Court of DeKalb County. Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971).

Phrase "unless otherwise provided by statute" in subsection (a) of this section does not refer to local practice rules provided in various statutes creating civil and criminal county courts. Auerback v. Maslia, 142 Ga. App. 184, 235 S.E.2d 594 (1977).

Answer to amendment of complaint not required.

- Statute requires an answer only to complaint or third-party complaint, not to amendment of a complaint. Diaz v. First Nat'l Bank, 144 Ga. App. 582, 241 S.E.2d 467 (1978).

No default for failure to answer counterclaim.

- Since no answer is required to a counterclaim, case cannot go into default as a consequence of a party's failure to respond thereto, and no default judgment can be authorized. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).

Though all summonses issued by a clerk to defendants in a counterclaim required an answer within 30 days of service or defendants would be held in default, failure to answer did not constitute default since the order adding additional defendants in a counterclaim directed the clerk to issue civil process to be served. Adams v. First Nat'l Bank, 170 Ga. App. 490, 317 S.E.2d 301 (1984).

Answer required from all parties named in complaint.

- When an answer was filed in the name of only one of four separate entities named as defendants in the action, the other three defendants could not benefit from the answer and, having filed no answer of their own, were in default. McCombs v. Southern Regional Medical Ctr., Inc., 233 Ga. App. 676, 504 S.E.2d 747 (1998).

Answer must be sufficiently definite to inform plaintiffs of defense.

- Although there is no need for the defendant to set forth any evidence, or to expose the defendant's defense in detail, it is required that the answer contain a statement of facts sufficiently definite so that the plaintiffs will be informed of the defense the plaintiffs must be prepared to meet. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

When a nonlawyer manager of a sales lot responded to a complaint by writing a two page letter to the plaintiff's attorney, which responded to each of the grievances listed in the complaint, and filed the letter with the court, such response was sufficient to constitute an answer. M & M Mobile Homes of Ga., Inc. v. Haralson, 233 Ga. App. 749, 505 S.E.2d 249 (1998).

Special appearance for purpose of contesting service is not an answer or "responsive" pleading. BX Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976).

Dismissal motion obviates need for answer.

- Granting of a motion to dismiss raising subsection (b) of O.C.G.A. § 9-11-12 obviates the requirement for a timely filed answer. Mock v. Copeland, 160 Ga. App. 876, 288 S.E.2d 591 (1982).

Answer not treated as motion to dismiss.

- In an action by attorney to collect legal fees, the trial court did not abuse the court's discretion in failing to treat the defendant client's answer, alleging that the plaintiff's attorney was ineligible to practice law, as a motion to dismiss or in failing to dismiss, sua sponte, the complaint. Howell v. Styles, 221 Ga. App. 781, 472 S.E.2d 548 (1996).

Response to amended complaint.

- Response to an amended pleading may be made, but one is not required. Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982).

Construing the pertinent provisions of O.C.G.A. §§ 9-11-7,9-11-8,9-11-12,9-11-15, and9-11-21 in pari materia, it is clear that the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) authorizes the addition of parties, by order of the court, and that an "amended complaint" effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Chan v. W-East Trading Corp., 199 Ga. App. 76, 403 S.E.2d 840, cert. denied, 199 Ga. App. 905, 403 S.E.2d 840 (1991).

Untimely response insufficient despite timely response to amended complaint.

- Defendants' untimely filed answers to the original complaint were in violation of O.C.G.A. § 9-11-12 despite a timely response to the plaintiff's amended complaint, in light of their automatic default status, which neither defendant sought to open pursuant to O.C.G.A. § 9-11-55(a). Day v. Norman, 207 Ga. App. 37, 427 S.E.2d 31 (1993).

Appeal to superior court from county tax assessment brought under former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311) was a "complaint" as contemplated by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), which was required to be answered by a responsive pleading. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).

Time for filing answer runs from date of service.

- The 30 days within which a defendant has to file an answer begins to run from the date of service and not from the filing of the return. Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985).

Time for filing answer in court of record may not be varied.

- When the legislature declares a particular county court to be a court of record, thus bringing the court under the provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), it cannot constitutionally thereafter, either in the same Act or in a subsequently enacted law, vary the rules of practice and procedure provided for in that Act by adding provisions requiring defendants to file defensive pleadings sooner than 30 days after service of the complaint on the defendants. Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971).

Entry of a rule nisi which does not expressly extend the time for answering a complaint does not suspend requirement that complaint be answered within 30 days after service. Cheeks v. Barnes, 241 Ga. 22, 243 S.E.2d 242 (1978).

Absent consent, no trial prior to expiration of 30-day period.

- No ordinary action may be tried in the Civil Court of Bibb County prior to expiration of the 30-day period given in subsection (a) of this section for filing an answer to a complaint, even though an answer has already been filed prior thereto, unless it be done by consent of the parties. Crosby v. Dixie Metal Co., 124 Ga. App. 169, 183 S.E.2d 59 (1971).

Late answer filed by uninsured motorist carrier.

- Trial court erred in denying an insured's motion for a default judgment and granting the uninsured motorist carrier's motion for summary judgment because the court relied upon a typographical error in case law in determining that the carrier's answer was not filed late and thereby finding that the carrier was not in default. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014).

Answer not required.

- Named defendant, who was listed in the summons that was issued but was never served with process, was not required to answer the complaint. Hamm v. Willis, 201 Ga. App. 723, 411 S.E.2d 771 (1991).

Time for filing answer after waiving service.

- Defendant has 30 days to file an answer after the defendant waives service by making an appearance in a case because time in which jurisdiction is waived is equivalent of time service of process is made in a normal case. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979).

No default if summary judgment motion pending.

- If the defendants were never served, and filed a motion for summary judgment within the time for filing defensive pleadings (although the defendants never filed an answer to the complaint), it was error for the trial court to enter default judgment while such motion was pending. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979).

Mere filing of a default summary judgment motion did not result in the entry of a default judgment.

- Nothing showed a final or conclusive judgment on the merits in plaintiff home buyer's state court case against defendant companies, and the buyer's mere filing of a default summary judgment motion did not result in the entry of a default judgment; thus, the Rooker-Feldman doctrine did not preclude federal jurisdiction upon removal. Jones v. Commonwealth Land Title Ins. Co., F.3d (11th Cir. Jan. 25, 2012), cert. dismissed, mot. denied, U.S. , 133 S. Ct. 35, 183 L. Ed. 2d 671 (2012)(Unpublished).

Default judgment should have been entered after failure to answer.

- Denial of a plaintiff's motion for default judgment against a defendant was error because the defendant did not file an answer, the time for filing an answer was not extended, and under O.C.G.A. § 9-11-55(a), the defendant's case was automatically in default 30 days after being served; further, the defendant did not move to open the default. The trial court's earlier findings on cross-motions for summary judgment regarding the codefendant's lack of contractual liability were irrelevant to the issue of whether the plaintiff was entitled to default judgment. H.N. Real Estate Group, LLC v. Dixon, 298 Ga. App. 124, 679 S.E.2d 130 (2009).

Default judgment properly entered due to untimely answer.

- Trial court did not err in granting a creditor's motion for default judgment on the ground that a debtor failed to answer the complaint within thirty days pursuant to O.C.G.A. § 9-11-12(a) because the trial court was authorized to conclude that the debtor's counsel executed an acknowledgment and waiver pursuant to O.C.G.A. § 9-10-73, that, therefore, the debtor's answer was due within thirty days after the acknowledgment and waiver, and that because it failed to serve an answer within that thirty-day period, its answer was untimely. O.C.G.A. § 9-11-4 did not apply because the acknowledgment of service the creditor drafted and submitted to the debtor did not make reference to § 9-11-4, and the creditor also did not inform the debtor by means of the text prescribed in § 9-11-4(1). Satnam Waheguru Corp. v. Buckhead Cmty. Bank, 304 Ga. App. 438, 696 S.E.2d 430 (2010).

Default judgment properly set aside when answer timely filed.

- Trial court did not abuse the court's discretion in setting aside a default judgment entered in favor of former police officers under O.C.G.A. § 9-11-60(d) because the default judgment was entered despite the fact that the record disclosed that a pension fund board of trustees timely answered the complaint and, thus, there was no basis upon which to claim a default judgment; the board's answer was filed 31 days after service, but because that day was a Monday and the 30th day after service fell on a Sunday, under O.C.G.A. § 1-3-1(d)(3), the answer was timely. Stamey v. Policemen's Pension Fund Bd. of Trs., 289 Ga. 503, 712 S.E.2d 825 (2011).

Answer timely filed.

- City council members filed the members' answer to a photographer's complaint well within the 30-day filing requirement under O.C.G.A. § 9-11-12(a) because one of the members was served with the complaint on December 20, 2007, the other was served on December 26, 2007, the case was removed to federal court on January 11, 2008, and both members filed a joint answer in federal court on January 17, 2008. Davis v. Wallace, 310 Ga. App. 340, 713 S.E.2d 446 (2011).

Trial court had jurisdiction over a home inspector, and the inspector was required under O.C.G.A. § 9-11-12(a) of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, to file an answer to the purchaser's complaint within 30 days, but because the inspector failed to do so, the inspector was in default. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011).

Option to raise defenses by motion or in pleading.

- Pleader may choose, at the pleader's option, to forgo opportunity to raise defenses by motion and to include the defenses in a responsive pleading. Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 220 S.E.2d 86 (1975).

Affirmative defenses.

- Since the defendant did not assert any affirmative defenses in the defendant's responsive pleadings, any defense that the defendant may have had are deemed waived. Burks v. Community Nat'l Bank, 216 Ga. App. 155, 454 S.E.2d 144 (1995).

Sovereign immunity.

- Community service board was a state agency, and the limited sovereign immunity waiver for state agencies in the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was subject to a specific exception for assault or battery. The community service board was immune from a claim arising from the stabbing death of a resident at a community home ran by the board, and a trial court's denial of a motion to dismiss filed by the board was reversed. Oconee Cmty. Serv. Bd. v. Holsey, 266 Ga. App. 385, 597 S.E.2d 489 (2004).

Qualified immunity cases subject to interlocutory appeal.

- Supreme Court of Georgia holds that Georgia courts must consider the issue of a government employee's qualified immunity from liability as the threshold issue in a suit against an officer in their personal capacity and requires the statutory framework governing interlocutory appeals be followed. Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016).

Party does not make motion to dismiss simply by confessing facts that establish lack of jurisdiction, even if the party suggests that the court might dismiss the case. McLanahan v. Keith, 140 Ga. App. 171, 230 S.E.2d 57 (1976), aff'd, 239 Ga. 94, 236 S.E.2d 52 (1977). But see Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

Reason for plea or written motion.

- Rationale for requirement that defense of insufficiency of service or process must be made by plea or written motion is to provide notice to the opposite party. Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 194 S.E.2d 670 (1972).

"Appearance card" not a pleading.

- "Appearance card," containing no admissions, denials, or statements of inability to answer for any reason, does not meet standards for a pleading as set forth in subsection (b) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) and Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(b)). Glenco-Belvedere Animal Hosp. v. Winters, 129 Ga. App. 621, 200 S.E.2d 506 (1973).

Motions to dismiss as part of responsive pleadings.

- Motions to dismiss for failure to set forth a cause of action and for failure to set forth a claim can properly be part of the defendant's responsive pleadings. Henderson v. Fulton County Bd. of Registration & Elections, 231 Ga. 173, 200 S.E.2d 739 (1973).

When motion to dismiss is addressed to entire pleading, such motion is properly overruled if a portion of the matter thus attacked is not subject to objections urged. Dillingham v. Doctors Clinic, 138 Ga. App. 41, 225 S.E.2d 500 (1976); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).

Ruling granting a motion to dismiss is an adjudication on the merits of the plaintiffs' claim, and is not equivalent to a voluntary dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(a)). State v. Golia, 235 Ga. 791, 222 S.E.2d 27 (1976).

Motion to dismiss based on forum selection clause.

- Trial court erred in denying an employer's motion to dismiss based on a forum selection clause as the employee failed to show that a forum selection clause in a merger agreement was unreasonable since: (1) the employee's affidavit failed to address the parties' relative bargaining positions, so the employee's claim that the clause was unreasonable as the employee was only one of six partners, with a 14 percent share, failed; (2) the employee's signature on the agreement was not the result of fraud or overreaching; (3) the employee could have refused to sign the agreement; (4) the employee's claim that the employer waived any objection to venue was not raised in the trial court, and venue was not at issue; and (5) the executive employment agreement and the merger agreement were properly construed together. SR Bus. Servs., Inc. v. Bryant, 267 Ga. App. 591, 600 S.E.2d 610 (2004).

Dismissal because of lack of jurisdiction constitutes final termination for purposes of appeal. McLanahan v. Keith, 140 Ga. App. 171, 230 S.E.2d 57 (1976), aff'd, 239 Ga. 94, 236 S.E.2d 52 (1977). But see Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

Defense of privilege is not a defense that must be affirmatively pled under Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(c)), nor specifically pleaded under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9), and is sufficiently raised by motion to dismiss under subsection (b) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12). Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975).

Failure of foreign corporation to obtain certificate of authority to transact business in this state is properly the subject of a dilatory plea. Safwat v. United States Leasing Corp., 154 Ga. App. 341, 268 S.E.2d 395 (1980).

Plea in abatement is a dilatory plea. Theo v. National Union Fire Ins. Co., 99 Ga. App. 342, 109 S.E.2d 53 (1959) (decided under former Code 1933, § 81-303).

"Dilatory pleas" are such as tend merely to defeat plaintiff's remedy or to delay or put off the suit by questioning the propriety of the remedy rather than by denying the injury; dilatory pleas may be tried separately from the main case. Theo v. National Union Fire Ins. Co., 99 Ga. App. 342, 109 S.E.2d 53 (1959) (decided under former Code 1933, § 81-303).

Matters in abatement are raised and resolved under O.C.G.A. § 9-11-12, and are not proper subjects for a motion for summary judgment. Hight v. Blankenship, 199 Ga. App. 744, 406 S.E.2d 241 (1991).

Defenses in subsection (b), except for paragraph (6), are matters in abatement that are not within the scope of summary judgment procedure as a motion for summary judgment applies to the merits of the claim, or to matters in bar, but not to matters in abatement. Knight v. United States Fid. & Guar. Co., 123 Ga. App. 833, 182 S.E.2d 693 (1971); Boyd Motors, Inc. v. Radcliff, 128 Ga. App. 15, 195 S.E.2d 291 (1973); Kirkpatrick v. Mackey, 162 Ga. App. 876, 293 S.E.2d 461 (1982).

Generally, defenses enumerated in paragraphs (b)(1) through (b)(5) and (b)(7) of this section are not proper subjects for motions for summary judgment. Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974).

Defendant's motion to dismiss or for summary judgment treated as one for summary judgment.

- When matters outside the pleadings were presented and not excluded by the trial court, the defendant's motion to dismiss the plaintiff's refiled action or, in the alternative, for summary judgment would be treated as one for summary judgment and the grant of that motion would be a grant of summary judgment in favor of the defendant and against the plaintiff. Williams v. Coca-Cola Co., 158 Ga. App. 139, 279 S.E.2d 261 (1981).

Motion to dismiss not converted to summary judgment.

- Defendant's motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process was not converted to a summary judgment motion upon consideration of matters outside the pleadings and, thus, dismissal was not directly appealable under the summary judgment statute. Church v. Bell, 213 Ga. App. 44, 443 S.E.2d 677 (1994).

Motion for summary judgment cannot be granted on matters in abatement, such matters being properly disposed of pursuant to a motion to dismiss. C.W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga. App. 354, 254 S.E.2d 426 (1979); Primas v. Saulsberry, 152 Ga. App. 88, 262 S.E.2d 251 (1979).

Matters in abatement.

- Motion for summary judgment under Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) or a motion under subsection (b) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) which is treated as one for summary judgment cannot be granted on matters in abatement. Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974).

Although a motion is made and treated as one for summary judgment, a motion for summary judgment cannot be used to raise a matter of abatement, such as lack of venue or jurisdiction, which must be brought under O.C.G.A. § 9-11-12. Big Canoe Corp. v. Williamson, 168 Ga. App. 179, 308 S.E.2d 440 (1983).

Jurisdictional type motion is not within the scope of summary judgment procedure. Hemphill v. Con-Chem, Inc., 128 Ga. App. 590, 197 S.E.2d 457 (1973).

When summons and process erroneously bore the caption "State Court of Walker [County]" rather than the "Superior Court" thereof, but when other aspects of the summons and process made clear that the action was in the superior court, and when the defendant in fact filed an answer and motion to dismiss in the superior court rather than the state court, there were no grounds to dismiss for lack of proper return of service or insufficiency of process. Gant v. Gant, 254 Ga. 239, 327 S.E.2d 723 (1985).

Motion in abatement properly denied.

- Trial court properly denied the Department of Transportation's motion in abatement, as plaintiffs, with the plaintiffs' affidavit and deposition of the plaintiffs' expert witness, carried the plaintiffs' burden of proof by showing the Department's design and engineering malpractice, and proof of malpractice was also proof of the waiver of sovereign immunity under O.C.G.A. § 50-21-24(10). DOT v. Dupree, 256 Ga. App. 668, 570 S.E.2d 1 (2002).

Contractual right to file.

- Founder's action against a small company, the small company's majority owner, and the owner's managing member was dismissed because the company and owner had the right to file first under the parties' ambiguous but effective standstill agreement and to give effect to a provision of the agreement that made the agreement null and void on a certain date would have meant not giving effect to another provision that afforded the company the right to file first in contravention of the parties' intent. Thomas v. B & I Lending, L.L.C., 261 Ga. App. 39, 581 S.E.2d 631 (2003).

No waiver of one year policy provisions.

- In an insurer's declaratory judgment action involving the insurer's obligations under a parent's property insurance policy, the insurer was properly granted summary judgment as to a child's claim since that claim was filed past the one year time limit set forth in the policy, which was a policy renewed in 2004. The child's counterclaim was filed 18 months after the declaratory judgment suit was filed and no waiver of the one year time limit was established. Morrill v. Cotton States Mut. Ins. Co., 293 Ga. App. 259, 666 S.E.2d 582 (2008).

Scope of jurisdiction.

- Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which that particular case belongs. Hill v. Kaminsky, 160 Ga. App. 630, 287 S.E.2d 639 (1981).

Jurisdiction should be decided at outset.

- Jurisdiction of court to afford relief sought is a matter which should be decided preliminarily at the outset; jurisdiction either exists or does not exist without regard to the merits of the case. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981).

Dismissal proper based on no waiver of sovereign immunity.

- Trial court properly dismissed a wrongful death suit against a State of Georgia mental health agency for lack of subject matter jurisdiction because the act causing the underlying loss in the case, namely a discharged psychiatric patient setting the patient's mother on fire, constituted an assault or battery; thus, the exception in O.C.G.A. § 50-21-24(7) to the waiver of sovereign immunity applied. Pak v. Ga. Dep't of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 731 S.E.2d 384 (2012).

Failure to raise defense.

- Trial court did not lack subject matter jurisdiction to rule on the enforcement of the judgment creditor's underlying judgment as the judgment debtor never raised the affirmative defense of subject matter jurisdiction in an answer or in a separate motion as was required by O.C.G.A. § 9-11-12(b)(1). Wilson v. 72 Riverside Invs., LLC, 277 Ga. App. 312, 626 S.E.2d 521 (2006).

In a transferred action between a lessee and its lessors, the superior court properly exercised subject matter jurisdiction over the action as no action was taken upon the lessee's notice of appeal, but pursuant to the magistrate's transfer order, which was authorized by Ga. Unif. Magis. Ct. R. 36; moreover, the lessors never raised the affirmative defense of lack of subject matter jurisdiction by way of an answer or in a separate motion, as was required by O.C.G.A. § 9-11-12(b)(1), or even in a motion for judgment on the pleadings. Abushmais v. Erby, 282 Ga. App. 86, 637 S.E.2d 725 (2006), aff'd, 282 Ga. 619, 652 S.E.2d 549 (2007).

Failure to comply with notice provisions under the Georgia Tort Claims Act.

- Because: (1) a patron's personal injury claim filed with the claims advisory board (CAB) in no way complied with the ante litem requirements of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq.; (2) the patron's claim to the CAB was made under a separate statutory scheme set up under Article 4 of Title 28 dealing with the financial affairs of the general assembly, covered under O.C.G.A. § 28-5-60 et seq.; and (3) prior to filing suit, no notice was given to the Risk Management Division of the Department of Administrative Services or the Department of Motor Vehicle Safety, to the extent that the trial court denied the motion of the state to dismiss the patron's claim of $5,000 or less, the court erred, but the order denying the patron's claim of $5,000 or more was upheld. State of Ga. v. Haynes, 285 Ga. App. 637, 647 S.E.2d 331 (2007).

Erroneous reliance on statute.

- Lack of subject matter jurisdiction is not necessarily established by the fact that the parties are erroneously asserting jurisdiction based on an inapplicable statute. Since all pleadings must be so construed as to do substantial justice, a court must determine whether a viable claim is presented notwithstanding erroneous reliance on the statute. Brown v. Rock, 184 Ga. App. 699, 362 S.E.2d 480 (1987).

Matter in abatement.

- Motion to dismiss that was based on a lack of subject matter jurisdiction was a matter in abatement. Sea Tow/Sea Spill of Savannah v. Phillips, 253 Ga. App. 842, 561 S.E.2d 827 (2002), aff'd in part and rev'd in part, 276 Ga. 352, 578 S.E.2d 846 (2003).

Because subject matter jurisdiction is a matter in abatement, jurisdiction had to be resolved on a motion pursuant to O.C.G.A. § 9-11-12(b), and not by a motion for summary judgment. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Unable to render decision on merits.

- Trial court lacked subject matter jurisdiction to hear the claims of the nursery owners against the state university professor related to plant cuttings the owners provided to the professor for tests and the professor's resulting conclusion that the plants grown from the cuttings had vast commercial potential; the trial court's lack of subject matter jurisdiction meant the trial court was unable to render a decision on the merits. Feist v. Dirr, 271 Ga. App. 169, 609 S.E.2d 111 (2004).

Collateral attack on valid default judgment unauthorized.

- Trial court properly dismissed a business' contribution action filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds as: (1) the court's finding that the business was the sole tortfeasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).

When the plaintiff did not give notice of claim to Risk Management Division of the state Department of Administrative Services, as specifically set forth in O.C.G.A. § 9-11-12, the plaintiff did not conform to the strict compliance requirements of the statute, and the plaintiff's claim was properly dismissed under subsection (b)(1), on the basis that the trial court did not have subject matter jurisdiction over the action. Kim v. DOT, 235 Ga. App. 480, 510 S.E.2d 50 (1998).

Notice required prior to abusive litigation claim.

- When a construction company's counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and51-7-80 et seq. alleged in the pleading that the claims constituted "notice" to assert such claims under O.C.G.A. § 51-7-81, the trial court properly determined that the claims were not counterclaims and, accordingly, dismissed the claims for want of subject matter jurisdiction under O.C.G.A. § 9-11-12(h)(3); it was also found that the required notice provided in O.C.G.A. § 51-7-84(b) was not provided prior to the filing of a claim, nor was the prior litigation ended in the defendants' favor, both of which were requirements in order to bring such a claim, and disposing of the claim under a summary judgment analysis, pursuant to O.C.G.A. § 9-11-56, was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).

Failure to pay costs of court is a defense which is waivable if not timely raised, and does not constitute grounds for dismissal due to the lack of subject matter jurisdiction. McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977). But see Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

When wife's complaint for divorce did not affirmatively allege residence so as to show on the pleadings legal jurisdiction of court over the subject matter, such issue could be raised by the evidence, and if so raised would be tantamount to an amendment of the pleadings to that effect. Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978).

Waiver of jurisdiction over person.

- Defense of lack of jurisdiction over the person may be waived by the party entitled to assert the defense under O.C.G.A. § 9-11-12. Cale v. Eastern Air Lines, 159 Ga. App. 630, 284 S.E.2d 647 (1981).

Trial court's ruling that the defendant did not timely assert the defendant's defense of lack of personal jurisdiction due to the plaintiff's laches in perfecting service was properly deemed waived since the defense was not raised by the defendant in the defendant's initial responsive pleading, pursuant to O.C.G.A. § 9-11-12(b). Adams v. Adams, 260 Ga. App. 597, 580 S.E.2d 261 (2003).

Defense may be raised by responsive pleading or motion.

- When a default has already been entered, the defendant can raise a defense of lack of jurisdiction over the defendant's person by motion to set aside judgment and submit it to the trial court for disposition under O.C.G.A. § 9-11-60(d), but if this defense is made prior to trial, it can be asserted in a responsive pleading, or asserted by motion under paragraph (b)(2) of O.C.G.A. § 9-11-12, and resolved in the usual manner. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).

Under O.C.G.A. § 9-11-60, a person may bring a motion to set aside a judgment void for lack of jurisdiction at any time, and O.C.G.A. § 9-11-12 could not be constitutionally applied to preclude a nonresident from bringing such a motion after a default judgment was entered against the nonresident. Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 459 S.E.2d 187 (1995); B & D Fabricators v. D.H. Blair Investment Banking Corp., 220 Ga. App. 373, 469 S.E.2d 683 (1996).

Sua sponte dismissal for lack of personal jurisdiction and insufficient service improper.

- Trial court erred in dismissing a publisher's suit to collect fees for advertising published in the Yellow Pages against an Ohio advertiser for lack of personal jurisdiction and insufficient service of process because jurisdiction was granted by a forum selection clause, personal service was shown as permitted by O.C.G.A. § 9-11-4(e)(7), and both personal jurisdiction and insufficient service could be waived. YP, LLC v. Ristich, 341 Ga. App. 381, 801 S.E.2d 80 (2017).

Motion to dismiss on jurisdictional grounds is not converted into a motion for summary judgment by the introduction of evidence pursuant to O.C.G.A. § 9-11-12(b). Nonetheless, the rule in Georgia is that the testimony of a party who offers oneself as a witness in one's own behalf at trial is to be construed most strongly against the party when it is self-contradictory, vague, or equivocal. Thus, in a divorce action, the court properly dismissed the case as under the persuasive evidence, which included the spouse's own testimony, the spouse simply had no residence in DeKalb County that the spouse could claim as a domicile. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369 (2004).

Long-arm jurisdiction.

- Because a foreign corporation did not independently perform any acts in Georgia that would subject the corporation to the state's long-arm jurisdiction under O.C.G.A. § 9-10-91, the trial court properly dismissed a domestic corporation's contract and tort claims. Catholic Stewardship Consultants, Inc. v. Ruotolo Assocs., Inc., 270 Ga. App. 751, 608 S.E.2d 1 (2004).

Internet car seller purposefully transacted business in the State of Georgia when the seller's agent conducted business negotiations with a buyer who lived in Georgia and when the seller delivered the vehicle in the state, so as to have established sufficient minimum contacts with the State of Georgia to authorize Georgia's exercise of personal jurisdiction over the seller under the Georgia Long Arm Statute, O.C.G.A. § 9-11-91; moreover, the state court correctly resolved the factual conflict created by the seller's affidavits and supporting documentation in favor of the buyer so as to find, for purposes of the motion to dismiss, that the buyer had not been provided with, nor agreed to, that part of the agreement containing the forum selection clause. Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 631 S.E.2d 734 (2006).

Trial court lacked subject matter jurisdiction.

- Trial court erred by entering a default judgment against a police officer for failing to timely answer because the officer was immune from suit on the claim brought under state law; thus, the default judgment entered on that claim was a nullity and the trial court lacked subject matter jurisdiction and should have dismissed the state law cause of action for lack of subject matter jurisdiction. Ferrell v. Young, 323 Ga. App. 338, 746 S.E.2d 167 (2013).

Motion based on facts dehors the pleading.

- When motion to dismiss for lack of venue is based upon facts dehors the pleading, motion becomes a "speaking" motion and proof must be presented on the hearing as to the facts alleged. Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973).

Forum selection clause upheld.

- Trial court erred in dismissing an action for breach of an equipment rental agreement on grounds that the forum selection clause contained therein was overbroad and unconscionable, and thus unenforceable, as: (1) the clause did not grant unfettered discretion to the plaintiff as to where suit could be brought; (2) the lessee under the agreement clearly had notice that suit could be filed anywhere the plaintiff maintained the plaintiff's principal place of business, but the clause aptly did not allow a suit to be filed in a forum where neither party had a nexus or relationship with the forum state; and (3) there was no evidence that the agreement was procured by fraud. OFC Capital v. Colonial Distribs., 285 Ga. App. 815, 648 S.E.2d 140 (2007), cert. denied, 2007 Ga. LEXIS 681 (Ga. 2007).

Movant supported motion by evidence of agreed upon forum selection clause.

- In a breach of contract action between an Internet-based business and an Internet advertiser, because the latter presented sufficient evidence to support its motion to dismiss a suit filed in the State of Georgia on personal jurisdiction grounds, given the forum selection clause in the contract designating the agreed-upon forum as the state and federal courts in the State of California, specifically, Los Angeles, and given the business's assent to venue, the advertiser met the advertiser's burden of proving a lack of personal jurisdiction, the trial court properly dismissed the Georgia action. Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 660 S.E.2d 797 (2008).

Responsive pleading must refer to venue.

- While it is not necessary to set forth in a responsive pleading reasons why venue is improper, in order to assert the defense, a defendant must make reference to venue. A general denial is not an assertion. Orkin Exterminating Co. v. Morrison, 187 Ga. App. 780, 371 S.E.2d 407, cert. denied, 187 Ga. App. 908, 371 S.E.2d 407 (1988).

Waiver of venue.

- One who, being properly served, wishes to rely on a defense of lack of venue must bring the defense to the attention of the court at a proper time or the defense is waived; allowing a case to go to default judgment is no better than allowing a case to be tried on the merits before coming in with a technical defense. Cotton v. Ruck, 157 Ga. App. 824, 278 S.E.2d 693 (1981).

When the plaintiff filed a lawsuit, never dismissed the lawsuit or moved for a transfer, and never raised the issue of venue until the second appeal from the trial court, the plaintiff waived any claim of improper venue. Hixson v. Hickson, 236 Ga. App. 894, 512 S.E.2d 648 (1999).

Claimant in a civil forfeiture proceeding could not assert on appeal that an order striking the claimant's answer and a final judgment of condemnation were void due to improper venue because the claimant did not raise that defense in the answer, thus waiving the defense under O.C.G.A. § 9-11-12(h). Gravley v. State of Ga., 285 Ga. App. 691, 647 S.E.2d 372 (2007).

Personal guarantor waived any venue defense, pursuant to O.C.G.A. § 9-11-12(b), because the guarantor never raised the issue before a hearing, and as was noted at the hearing, did not file a motion to transfer venue. Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012).

Properly raised defense of improper venue is not waived implicitly by allowing the litigation to proceed over a lengthy period of time, nor is the defense waived implicitly by entering into consent orders extending discovery. Williams v. Willis, 204 Ga. App. 328, 419 S.E.2d 139 (1992).

Failure to transfer.

- State court erred by dismissing a personal injury lawsuit filed against the Metropolitan Atlanta Rapid Transit Authority and one of its bus drivers as joint tortfeasors since the matter should have been transferred to superior court pursuant to the Uniform Transfer Rules. McDonald v. MARTA, 251 Ga. App. 2306, 554 S.E.2d 226 (2001).

Motion to dismiss proper to raise insufficiency of process.

- When the defendant contends that there was insufficiency of service of process, a motion to dismiss is the proper method to raise such issue. Boyer v. King, 129 Ga. App. 690, 200 S.E.2d 906 (1973).

Defense of "insufficiency of process" must be raised specifically.

- When summons and affidavit under former Code 1933, §§ 61-402 and 61-403 (see now O.C.G.A. §§ 44-7-71 and44-7-72), relating to distress warrants, were defective, the trial court was not authorized to dismiss the summons and affidavit on the basis of a motion to dismiss for failure to state a claim upon which relief can be granted; deficiency in the summons and affidavit was in the nature of defense of "insufficiency of process," as described in paragraph (b)(4) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12), and failure to raise this defense specifically in defensive pleadings waived the defense. White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Dismissal for lack of proper and timely service.

- Even though the trial court found that the plaintiff did not exercise reasonable diligence in perfecting service until after the running of the statute of limitations, it was error to dismiss the claims with prejudice upon a motion to dismiss for lack of proper and timely service because there had been no adjudication on the merits. Wilson v. Ortiz, 232 Ga. App. 191, 501 S.E.2d 247 (1998).

Judgment of dismissal without prejudice under paragraphs (b)(2), (b)(4), and (b)(5) of O.C.G.A. § 9-11-12 was required because the plaintiff's substituted service on the defendant's insurer was not proper service under O.C.G.A. § 9-11-4 (d), (e)(2), or O.C.G.A. § 9-10-90 et seq. South v. Montoya, 244 Ga. App. 52, 537 S.E.2d 367 (2000).

Defendant's motion to dismiss a plaintiff's personal injury complaint should have been granted because service occurred after the two-year statute of limitations under O.C.G.A. § 9-3-33 expired, and the limitation period was not tolled because the record was devoid of evidence that the plaintiff made any attempt to personally serve the defendant for more than two years after the trial court's order granting a motion for service by publication. Dunn v. Kirsten, 273 Ga. App. 27, 614 S.E.2d 156 (2005), but see Cohen v. Allstate Ins. Co., 277 Ga. App. 437, 626 S.E.2d 628 (2006).

Trial court properly dismissed a plaintiff's personal injury action filed against the defendant on insufficient service of process grounds as: (1) plaintiff did little to pursue service; (2) plaintiff inappropriately shifted the burden of search on the court; and (3) the fact that the defendant served interrogatories and a request for production did not amount to a waiver of an insufficient service of process defense. Kelley v. Lymon, 279 Ga. App. 849, 632 S.E.2d 734 (2006).

Trial court erred in finding that the State Election Board was not properly served with process of an election candidate's challenge to an election contest; but, the candidate's failure to effect timely service of appropriate process of the contest against the mayor-elect required dismissal of the suit. Swain v. Thompson, 281 Ga. 30, 635 S.E.2d 779 (2006).

In a personal injury lawsuit, because, as a matter of law, an injured individual failed to carry the burden of showing reasonable diligence in attempting to serve the complaint, the trial court abused the court's discretion in denying a motion to dismiss the complaint; moreover, despite the individual's attempt to argue to the contrary, the applicable test was whether the plaintiff exercised due diligence, not whether the defendant had suffered harm from the delay in service of process. Duffy v. Lyles, 281 Ga. App. 377, 636 S.E.2d 91 (2006).

In a personal injury action arising from an auto accident filed two days before the expiration of the applicable statute of limitation, because the record failed to show that the plaintiff acted with the greatest possible diligence to personally serve the defendant, the trial court did not abuse the court's discretion in dismissing the plaintiff's complaint based on insufficient service of process. Moody v. Gilliam, 281 Ga. App. 819, 637 S.E.2d 759 (2006).

Because a personal representative failed to effectuate proper service of a personal injury suit on a passenger of a vehicle involved in an accident in which the decedent was killed, especially after having been placed on notice that service had not been perfected, the passenger's motion to dismiss the suit was properly granted. Ballenger v. Floyd, 282 Ga. App. 574, 639 S.E.2d 554 (2006).

Based on sufficient evidence that a resident stood idle for six months after learning of the difficulties in serving a non-resident, the resident's personal injury complaint was properly dismissed on grounds that the resident failed to exercise due diligence in effectuating service of process; hence, the statute of limitations under O.C.G.A. § 9-3-33 was not tolled. Livingston v. Taylor, 284 Ga. App. 638, 644 S.E.2d 483 (2007).

Because the affidavits submitted by the defendant were sufficient to overcome the evidence of the process server's return of process, and the record supported the trial court's finding that the plaintiff did not effect service on the defendant, specifically showing that there was no signature of receipt, no log of event, no notes of service, no detailed description of the defendant, and no request for identification, dismissal of the action was proper. Bohorquez v. Strother, 287 Ga. App. 98, 650 S.E.2d 765 (2007).

Late-filed defense waived.

- Judgment for the defendant was reversed since 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 ran. Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988).

Service of process waived.

- No reversible error was found because a contestant in a quiet title action waived service of process, neglected to file any pleadings, and failed to file a record to support the claims of error on appeal, and given that the special master found three independent bases, which on their face supported the judgment entered. Brown v. Fokes Props. 2002, Inc., 283 Ga. 231, 657 S.E.2d 820 (2008).

Service of process held sufficient.

- Because a corporation failed in the corporation's burden of showing that the person who actually received service of process was not authorized to accept service on behalf of the corporation's registered agent, the service was properly found to be sufficient. Thus, the trial court was not required to dismiss the action based on a lack of sufficient service of process. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008).

Because service of process to a person at least 15 years old who resided at the residence listed on the return of service was sufficient, such could not serve as a basis to dismiss the action; moreover, adequate and proper service of process was presumed given that the party charged with service timely filed an answer. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008).

Evidence required to show failure of service.

- When a signed entry of service was presented to the court, the defendant's submission of a one-page affidavit that stated the defendant did not receive service was not sufficient to support the defendant's claim of failure of service. Oden v. Legacy Ford-Mercury, Inc., 222 Ga. App. 666, 476 S.E.2d 43 (1996).

Return as evidence of service.

- Return of service indicates that service was made at the most notorious place of abode and is prima facie evidence of service. Meier v. Bennett, 208 Ga. App. 688, 431 S.E.2d 462 (1993).

Objection to service not grounds for summary judgment.

- Court is not authorized to grant motion for summary judgment on ground of objection to service of process. Knight v. United States Fid. & Guar. Co., 123 Ga. App. 833, 182 S.E.2d 693 (1971).

Sufficiency of service of process is outside the scope of summary judgment. Concert Promotions, Inc. v. Haas & Dodd, Inc., 167 Ga. App. 883, 307 S.E.2d 763 (1983).

Issue raised in summary judgment motion.

- Although the defendant's motion for summary judgment raised the issue of insufficiency of service of process, that defense is a plea in abatement and, as such, it is not properly a basis of a motion for summary judgment; but if the defense is raised for resolution in the trial court and it has not otherwise been waived by the defendant, the nomenclature of the pleading which raises that issue should not be a material consideration. Under these circumstances, the proper disposition of the case is to vacate the order of the trial court on the cross-motions for summary judgment and to remand the case with direction that the plaintiff's complaint be dismissed for insufficiency of service of process. Cheshire Bridge Enters., Inc. v. Lexington Ins. Co., 183 Ga. App. 672, 359 S.E.2d 702, cert. denied, 183 Ga. App. 905, 359 S.E.2d 702 (1987).

Dismissal based on statute of limitations not waived.

- It is immaterial that, in the defendant's original answer, the defendant did not raise the paragraph (b)(5) of O.C.G.A. § 9-11-12 defense of insufficiency of service of process, since, regardless of its timeliness, personal service was eventually perfected on the defendant. Thus, no ground existed for any objection to the method of service. The motion to dismiss was brought on the ground that the action was barred by the statute of limitations and the defendant's right to dismissal on this ground was not waived. Bennett v. Nelson, 202 Ga. App. 346, 414 S.E.2d 291 (1991), cert. denied, 202 Ga. App. 905, 414 S.E.2d 291 (1992).

Dismissal for insufficiency of service not a ruling on statute of limitations.

- Defense of insufficiency of service of process is a matter in abatement; a dismissal for insufficiency of service of process is a finding by the trial court that service was not perfected in a reasonable and diligent manner within the prescribed statute of limitation and is not a ruling that the plaintiff's action is, in fact, barred by the running of the statute of limitation. Such an issue is a factual issue and must eliminate the factual issue of tolling. Mangram v. City of Brunswick, 324 Ga. App. 725, 751 S.E.2d 523 (2013).

No right to confrontation or public trial in civil cases.

- When a buyer claiming that the buyer was fraudulently sold real estate argued, on appeal, that the trial court's summary dismissal of the buyer's complaint under O.C.G.A. §§ 9-11-12(b)(6) and9-11-56 deprived the buyer of the right to confront witnesses and the right to a public trial, this claim had no merit because the right to confront witnesses and the right to a public trial only applied to criminal proceedings. Crane v. Samples, 267 Ga. App. 895, 600 S.E.2d 624 (2004), cert. denied, 544 U.S. 927, 125 S. Ct. 1650, 161 L. Ed. 2d 488 (2005).

Adoption of party's proposed order not clearly erroneous.

- In a dispute over the use of an easement, because a landowner abandoned error regarding the denial of a motion to dismiss on service of process grounds, and the trial court properly adopted a neighbor's proposed order as the court's final order, as the landowner failed to support a claim that the findings of fact or conclusions of law were incorrect, the order denying dismissal of the action was upheld on appeal. Woodyard v. Jones, 285 Ga. App. 323, 646 S.E.2d 306 (2007).

No right to jury trial.

- On appeal, a real estate buyer, claiming a fraudulent sell, argued that the trial court's summary dismissal of the buyer's complaint under O.C.G.A. §§ 9-11-12(b)(6) and9-11-56 deprived the buyer of the right to a jury trial, such claim had no merit because, when the opposing parties filed an affidavit with their motion for summary judgment claiming that the misrepresentation alleged in the buyer's complaint did not occur, and the buyer did not respond to that motion, the evidence in the record was undisputed that the misrepresentation, which was the crux of the buyer's claims, did not happen, so there was no fact-finding role for a jury to perform. Crane v. Samples, 267 Ga. App. 895, 600 S.E.2d 624 (2004), cert. denied, 544 U.S. 927, 125 S. Ct. 1650, 161 L. Ed. 2d 488 (2005).

No right to hearing on motion.

- Notwithstanding the motion's caption, a defendant's motion did not seek summary judgment but was in essence a motion to dismiss for insufficiency of service of process under O.C.G.A. § 9-11-12(b)(5); further, the ruling thereupon was not a summary judgment. Therefore, the plaintiff was not entitled to a hearing on the motion under Ga. Unif. Super. Ct. R. 6.3. McCullers v. Harrell, 298 Ga. App. 798, 681 S.E.2d 237 (2009), cert. denied, No. S09C1914, 2010 Ga. LEXIS 55 (Ga. 2010).

Issue not waived.

- When a spouse in an action under the Family Violence Act, O.C.G.A. § 19-13-1 et seq.; raised the issue of insufficiency of service at hearings and proceeded with the merits only after the spouse's motions to dismiss were denied, the spouse's appearances were made subject to the motions, and the spouse could not be deemed to have waived the service issue for appeal. Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007).

Service by publication.

- Trial court erred by granting the defendant's motion to dismiss for lack of personal jurisdiction because the court granted the plaintiff's motion for service by publication and since the defendant was so served, the court was required to determine whether service by publication was sufficient to confer personal jurisdiction over the defendant. Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

Trial court had to determine whether attorney was authorized to accept service.

- Trial court abused the court's discretion by dismissing a landlord's suit against a tenant under O.C.G.A. § 9-11-60 for lack of personal jurisdiction because a determination was necessary as to whether a law firm who accepted service was authorized to represent the tenant before the trial court determined that the court lacked personal jurisdiction over the tenant. Endover Palisades, LLC v. Stuart, 324 Ga. App. 90, 749 S.E.2d 381 (2013).

Two-part test for dismissal of pleading.

- Motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless: (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. Mooney v. Mooney, 235 Ga. App. 117, 508 S.E.2d 766 (1998).

Complaint may be dismissed on motion if clearly without any merit, and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim. Poole v. City of Atlanta, 117 Ga. App. 432, 160 S.E.2d 874 (1968); Rossville Fed. Sav. & Loan Ass'n v. Insurance Co. of N. Am., 121 Ga. App. 435, 174 S.E.2d 204 (1970).

Motion to dismiss performs functions of general demurrer.

- Motion to dismiss for failure to state a claim upon which relief can be granted under paragraph (b)(6) of this section performs substantially the same function as former common-law general demurrer. Western Contracting Corp. v. State Hwy. Dep't, 123 Ga. App. 331, 181 S.E.2d 89 (1971), later appeal, 125 Ga. App. 376, 187 S.E.2d 690 (1972); International Indem. Co. v. Blakey, 161 Ga. App. 99, 289 S.E.2d 303 (1982).

Dismissal proper under O.C.G.A.

§ 9-2-5 if identical case filed in another county. - Appellate court properly dismissed a second fraud and breach of contract action filed in a separate county, which was identical to one previously filed by the same plaintiff against the same defendants, under the prior pending litigation doctrine pursuant to O.C.G.A. § 9-2-5, and not under O.C.G.A. § 9-11-12(b)(6), which acted as a defense to the later filed action. Kirkland v. Tamplin, 283 Ga. App. 596, 642 S.E.2d 125, cert. denied, No. S07C0915, 2007 Ga. LEXIS 508 (Ga. 2007); cert. denied, 552 U.S. 1010, 128 S. Ct. 545, 169 L. Ed. 2d 373 (2007).

Motion to dismiss applies only to merits of case.

- While motion to dismiss for failure to state a claim performs substantially same functions as former general demurrer, it does so only as to merits of claim, and raises no question of absence of venue appearing on the face of the complaint as was formerly raised by demurrer. Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973).

Motion to dismiss under paragraph (b)(6) of this section goes solely to the merits. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).

Motion to dismiss does not raise dilatory matter or matter in abatement.

- Motion to dismiss under paragraph (b)(6) of this section for failure to state a claim for which relief may be granted does not raise dilatory matter or matter in abatement as such motion goes solely to the merits. Chatham v. Royal-Globe Ins. Cos., 135 Ga. App. 59, 217 S.E.2d 308 (1975).

Motion to dismiss under paragraph (b)(6) of this section for failure to state a claim for which relief may be granted does not raise questions of venue or process or service thereof, as such motion goes solely to the merits; this is the reason that consideration of evidence on such motion converts the motion into a motion for summary judgment. Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973).

Dismissal on merits inappropriate when dismissal occurred on other grounds.

- Trial court order dismissing the complaint with prejudice for failure to state a claim was vacated because having ruled as the court did that dismissal was appropriate for insufficient service of process and lack of personal jurisdiction, the court lacked jurisdiction to proceed to rule upon whether the complaint should be dismissed on the merits under O.C.G.A. § 9-11-12(b)(6). Wellman v. JP Morgan Chase Bank, NA, Ga. App. , 817 S.E.2d 567 (2018).

General demurrer is treated on appeal as motion to dismiss under paragraph (b)(6) of Ga. L. 1968, p. 1104, § 3 (see now O.C.G.A. § 9-11-12) for failure to state a claim upon which relief can be granted, and the ruling of the trial judge is considered as if it were based on the requirements of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(a)). Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969).

Treatment of demurrer on appeal.

- On appeal, court must view petition attacked by general demurrer with regard to whether the petition states a claim for which relief may be granted; this is the test of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), which the court must apply on review regardless of when the judgment was entered below. Hill v. Lariscy, 118 Ga. App. 699, 165 S.E.2d 315 (1968).

Appellate court may regard general demurrer for failure to state a cause of action as a motion to dismiss for failure to state a claim for which relief may be granted. Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968).

Motion not made in writing before trial.

- Motion to dismiss for failure to state a claim can be considered although the motion is not made in writing before trial, since paragraph (h)(2) of O.C.G.A. § 9-11-12 specifically provides that: "A defense of failure to state a claim upon which relief can be granted . . . may be made . . . at the trial on the merits," and a motion made during the trial need not be reduced to writing. Irvin v. Lowe's of Gainesville, Inc., 165 Ga. App. 828, 302 S.E.2d 734 (1983).

Action involving trust and minority shareholders.

- Because the trial court properly found that a Delaware appraisal proceeding was the exclusive remedy for a trust, and since the trust was no longer a shareholder in the wake of a corporate merger, the trust no longer had standing to assert such claims on the corporation's behalf, the trial court properly dismissed the trust's amended complaint for failure to state a claim upon which relief could be granted. Paul & Suzie Schutt Irrevocable Family Trust v. NAC Holding, Inc., 283 Ga. App. 834, 642 S.E.2d 872 (2007), cert. denied, 2007 Ga. LEXIS 644 (Ga. 2007).

Construction of pleadings in light most favorable to plaintiff.

- Since under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) issues are no longer formed by the pleadings, and pleadings serve only the purpose of giving notice to the opposite party of the general nature of the contentions of the pleader, it is no longer appropriate to construe the pleadings against the pleader, but the pleadings should be construed in the light most favorable to the pleader, with all doubts resolved in the pleader's favor, even though unfavorable constructions are possible. DeKalb County v. Georgia Paperstock Co., 226 Ga. 369, 174 S.E.2d 884 (1970).

Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), on motion to dismiss, pleading attacked is construed in the pleading's most favorable light. Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).

Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), when the sufficiency of a complaint is questioned, the pleadings must be construed in the light most favorable to the plaintiff. Massey v. Perkerson, 129 Ga. App. 895, 201 S.E.2d 830 (1973).

When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the new rules require that the complaint be construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff's favor even though unfavorable constructions are possible; not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. Storm Sys. v. Kidd, 157 Ga. App. 527, 278 S.E.2d 109 (1981); Morgan v. Georgia Vitrified Brick & Clay Co., 196 Ga. App. 779, 397 S.E.2d 49 (1990).

All doubts resolved in plaintiff's favor.

- On motion to dismiss, the complaint should be construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff's favor. Harper v. DeFreitas, 117 Ga. App. 236, 160 S.E.2d 260 (1968); Western Contracting Corp. v. State Hwy. Dep't, 125 Ga. App. 376, 187 S.E.2d 690 (1972); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977); Quetgles v. City of Columbus, 264 Ga. 708, 450 S.E.2d 677 (1994), cert. denied, 514 U.S. 1083, 115 S. Ct. 1794, 131 L. Ed. 2d 722 (1995).

Effect of possibility of contrary inferences.

- Plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are also possible. Harper v. DeFreitas, 117 Ga. App. 236, 160 S.E.2d 260 (1968); Western Contracting Corp. v. State Hwy. Dep't, 125 Ga. App. 376, 187 S.E.2d 690 (1972).

When the sufficiency of a complaint is questioned by a motion to dismiss, the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) requires that the complaint be construed in the light most favorable to the plaintiff, with all doubts resolved in the plaintiff's favor, even though unfavorable constructions are possible. Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968).

It is immaterial whether an allegation is one of fact or conclusion if the complaint effectively states a claim for relief. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977); Ledford v. Meyer, 249 Ga. 407, 290 S.E.2d 908 (1982).

True test is whether the pleading gives fair notice and states elements of claim plainly and succinctly, and not whether as an abstract matter the pleading states "conclusions" or "facts." Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

Fair notice of claim is standard.

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a petition or complaint is sufficient against a motion to dismiss if the petition or complaint gives a defendant fair notice of the nature and basis of the claim against the defendant. Hill v. Lariscy, 118 Ga. App. 699, 165 S.E.2d 315 (1968).

Reasonable notice not given.

- Because a couple's complaint premised on an erroneous listing in a telephone directory failed to allege any of the claims the couple sought to pursue, specifically, interfering with the couple's right of quiet enjoyment of their property and nuisance, and even after giving the couple the benefit of all reasonable inferences that could be drawn from the couple's complaint, the fact remained that the directory's publisher was not placed on reasonable notice of whether the couple was asserting a claim in equity, contract, or tort, much less whether the couple were pleading a particular tort such as negligence or libel, the complaint was properly dismissed as failing to state a claim upon which relief could be granted. Patrick v. Verizon Directories Corp., 284 Ga. App. 123, 643 S.E.2d 251 (2007).

Complaint is not required to set forth cause of action, but need only set forth a claim for relief. Christner v. Eason, 146 Ga. App. 139, 245 S.E.2d 489 (1978).

Pleading not dismissed unless no facts support claim.

- Pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim which would entitle the plaintiff to relief. Bray v. Central Chevrolet, Inc., 118 Ga. App. 493, 164 S.E.2d 286 (1968); Hill v. Lariscy, 118 Ga. App. 699, 165 S.E.2d 315 (1968); Jones v. Frances Wood Wilson Found., Inc., 119 Ga. App. 28, 165 S.E.2d 882 (1969); General Tel. Co. v. Pritchett, 119 Ga. App. 53, 165 S.E.2d 918 (1969); Leonas v. Johnson, 122 Ga. App. 160, 176 S.E.2d 506 (1970); Dillingham v. Doctors Clinic, 236 Ga. 302, 223 S.E.2d 625 (1976); Bryant v. Bryant, 236 Ga. 265, 223 S.E.2d 662 (1976); Rhyne v. Garfield, 236 Ga. 694, 225 S.E.2d 43 (1976); Atlanta Assocs. v. Westminster Properties, Inc., 242 Ga. 462, 249 S.E.2d 252 (1978); Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979); Harold Cohn & Assocs. v. Nix, 157 Ga. App. 262, 277 S.E.2d 274 (1981); Peoples Bank v. Austin, 159 Ga. App. 223, 283 S.E.2d 81 (1981); Jones v. Phillips, 183 Ga. App. 11, 357 S.E.2d 853 (1987); Hartford Ins. Co. v. Henderson & Son, 186 Ga. App. 592, 367 S.E.2d 859, aff'd, 258 Ga. 493, 371 S.E.2d 401 (1988).

Unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiff's claim, a motion under paragraph (b)(6) of this section to dismiss a complaint for failure to state a claim should not be granted. Harper v. DeFreitas, 117 Ga. App. 236, 160 S.E.2d 260 (1968); Poole v. City of Atlanta, 117 Ga. App. 432, 160 S.E.2d 874 (1968); Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968); Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969); Bell v. Atlanta Cooperage Co., 121 Ga. App. 207, 173 S.E.2d 427 (1970); Rossville Fed. Sav. & Loan Ass'n v. Insurance Co. of N. Am., 121 Ga. App. 435, 174 S.E.2d 204 (1970); Peacock Constr. Co. v. Erickson's, Inc., 121 Ga. App. 544, 174 S.E.2d 276 (1970); Blower v. Jones, 226 Ga. 847, 178 S.E.2d 172 (1970); Western Contracting Corp. v. State Hwy. Dep't, 125 Ga. App. 376, 187 S.E.2d 690 (1972); Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972); Dean v. Dean, 229 Ga. 612, 193 S.E.2d 838 (1972); Oliver v. Irvin, 230 Ga. 248, 196 S.E.2d 429 (1973); City of Jonesboro v. Clayton County Water Auth., 131 Ga. App. 218, 205 S.E.2d 475 (1974); Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977); Christner v. Eason, 146 Ga. App. 139, 245 S.E.2d 489 (1978); Harrell v. Monroe County, 147 Ga. App. 685, 250 S.E.2d 20 (1978); Isaac v. Butler's Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980); Holloway v. Dougherty County Sch. Sys., 157 Ga. App. 251, 277 S.E.2d 251 (1981); Pace v. Smith, 248 Ga. 728, 286 S.E.2d 18 (1982); Property Pickup, Inc. v. Morgan, 249 Ga. 239, 290 S.E.2d 52 (1982); Ledford v. Meyer, 249 Ga. 407, 290 S.E.2d 908 (1982).

Unless it can be said that under no conceivable state of facts which the plaintiff might prove under allegations of the complaint would the plaintiff be entitled to any relief, a motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted ought not to be sustained. Sixth St. Corp. v. City Stores Co., 229 Ga. 99, 189 S.E.2d 407 (1972); Herndon v. Aultman-Beasley, Inc., 127 Ga. App. 743, 195 S.E.2d 250 (1972).

Basic premise of the new civil procedure is that it does away with issue pleadings and substitutes notice pleadings; hence, a petition should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the plaintiff's claim thereunder which would entitle the plaintiff to relief. Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548, 177 S.E.2d 846 (1970).

Motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, the plaintiff can establish no set of facts that would entitle the plaintiff to relief against the defendant. Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 359 S.E.2d 383 (1987).

In a medical malpractice action, the trial court properly denied a neurosurgeon's motion to dismiss the action, on grounds that the affidavit required under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) was from an orthopedist and not a fellow neurosurgeon, and was thus insufficient as a matter of law to support the husband and wife's medical malpractice complaint as the statutory area of practice or specialty in which the opinion was to be given was dictated not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning the plaintiff's injury. Abramson v. Williams, 281 Ga. App. 617, 636 S.E.2d 765 (2006), cert. denied, No. S07C0226, 2007 Ga. LEXIS 91 (2007).

Complaint failed to state a claim upon which relief could be granted because the defendants could not be said to have tortiously interfered with the defendant's own contract. Professional Carpet Sys. v. Saefkow, 212 Ga. App. 131, 441 S.E.2d 98 (1994).

Dismissal of a husband's legal malpractice claim against an attorney arising out of the attorney's representation of the husband's wife and child in three appeals was proper under O.C.G.A. § 9-11-12(b)(6) and did not violate the husband's Sixth and Seventh Amendment rights as there was no attorney-client relationship between the husband and the attorney. Crane v. Albertelli, 264 Ga. App. 910, 592 S.E.2d 684 (2003), cert. denied, 543 U.S. 819, 125 S. Ct. 481, 160 L. Ed. 2d 359 (2004).

Trial court did not err in granting judgment on the pleadings to the state revenue department on the two associations' challenges to regulations governing distribution of malt beverages in Georgia as the undisputed facts that appeared from the pleadings showed that the state revenue department's regulations were permitted under the plain language of statutory law and were consistent with legislative intent. Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393, 582 S.E.2d 549 (2003).

Trial court erred when the court refused to dismiss a corporation's claim that shareholders who received the corporation's stock in a merger were unjustly enriched because the corporation did not allege that the shareholders abused or disregarded the corporate form of a company it acquired to enrich themselves. McKesson Corp. v. Green, 266 Ga. App. 157, 597 S.E.2d 447 (2004).

In an action filed by a buyer seeking specific performance of a land sales contract, the trial court properly dismissed the buyer's complaint as specific performance was not an available remedy given evidence that one of the sellers, who was one of three siblings that owned the property sought by the buyer, did not authorize a second sibling to sell the property. Viola E. Buford Family Ltd. P'ship v. Britt, 283 Ga. App. 676, 642 S.E.2d 383 (2007).

Motion to dismiss properly denied.

- Motion to dismiss a case brought by an insurance company against a corporation seeking indemnification for a payment made to settle a claim against an insured of the insurance company was properly denied when, while the corporation was an additional insured under the policy at issue, the policy provided an exclusion for claims based on the sole negligence of an additional insured as a lessor; whether any of the policy exceptions applied to the exclusion was an issue to be resolved as the case proceeded. AEW #2 Corp. v. Fed. Ins. Co., 268 Ga. App. 740, 603 S.E.2d 22 (2004).

Motion to dismiss improperly denied.

- Trial court erroneously denied a motion to dismiss a personal injury action filed by two parents against two social hosts, arising out of the death of the parents' 20-year-old daughter, which alleged that the social hosts served the daughter alcohol, and the daughter died when the daughter drunkenly drove into a tree after leaving the social hosts' home as the action was barred due to the fact that the daughter had already reached the age of majority at the time of the accident. Penny v. McBride, 282 Ga. App. 590, 639 S.E.2d 561 (2006), cert. denied, No. S07C0478, 2007 Ga. LEXIS 223 (Ga. 2007).

Motion to dismiss improperly granted.

- In a student's action against a college alleging ordinary and gross negligence, premises liability, and intentional infliction of emotional distress, because the student was not required to present evidence of foreseeability, but instead had to only allege facts that, if proven, could create a factual question for the jury as to whether the violent attack that was the subject of the suit, was foreseeable, the trial court erroneously dismissed the suit at such an early stage of the proceedings for failure to state a claim upon which relief could be granted. Love v. Morehouse College, Inc., 287 Ga. App. 743, 652 S.E.2d 624 (2007).

Because it was possible that a former employee could introduce evidence within the framework of the complaint establishing that the alleged oral defamatory statements were disseminated to other co-workers who had no duty or authority giving them reason to receive the information, the Court of Appeals of Georgia erred in holding otherwise and agreeing with the trial court that the employee failed to state a claim upon which relief could be granted. Scouten v. Amerisave Mortg. Corp., 283 Ga. 72, 656 S.E.2d 820 (2008).

Trial court erroneously dismissed a couple's complaint upon grounds that the complaint failed to state a claim upon which relief could be granted because the complaint alleged intentional torts against an attorney and that attorney's law firm, and not claims of professional malpractice or negligence; therefore, the complaint was not required to be accompanied by an expert's affidavit pursuant to O.C.G.A. § 9-11-9.1. Walker v. Wallis, 289 Ga. App. 676, 658 S.E.2d 217 (2008).

Petition for mandamus properly dismissed.

- Trial court properly dismissed a landowners' petition for mandamus filed against a judge as premature and for failing to state a claim as the landowner opted to file the petition, but could have requested a hearing to allow the judge an opportunity to rule on the previously filed motions because the 90-day ruling period applicable to those motions pursuant to O.C.G.A. § 15-6-21(b) had not yet expired at the time the petition had been filed. Voyles v. McKinney, 283 Ga. 169, 657 S.E.2d 193 (2008).

If, within framework of complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Peacock Constr. Co. v. Erickson's, Inc., 121 Ga. App. 544, 174 S.E.2d 276 (1970); Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972); Dean v. Dean, 229 Ga. 612, 193 S.E.2d 838 (1972); Christner v. Eason, 146 Ga. App. 139, 245 S.E.2d 489 (1978).

Counterclaims.

- Just as with an original claim, a motion to dismiss a counterclaim for failure to state a claim upon which relief can be granted should not be granted unless it appears to a certainty that the defendant would be entitled to no relief under any state of facts which could be proved in support of the counterclaim, and if within the framework of the complaint evidence may be introduced which will sustain the grant of relief to the defendant, the counterclaim is sufficient. Grant v. Fourth Nat'l Bank, 229 Ga. 855, 194 S.E.2d 913 (1972).

When one count sets forth a claim, complaint not overruled.

- Motion under paragraph (b)(6) of this section to dismiss a complaint composed of several counts, when one of the counts sets forth a claim, should not be overruled. Western Contracting Corp. v. State Hwy. Dep't, 123 Ga. App. 331, 181 S.E.2d 89 (1971), later appeal, 125 Ga. App. 376, 187 S.E.2d 690 (1972).

Res judicata.

- Sustaining of a motion to dismiss for failure to state a claim is res judicata on the merits of the claim. Dillingham v. Doctors Clinic, 236 Ga. 302, 223 S.E.2d 625 (1976).

Pro se complaint is not held to stringent standards of formal pleadings and the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim which would entitle the plaintiff to relief. Johnson v. Jones, 178 Ga. App. 346, 343 S.E.2d 403 (1986).

Noncompliance with the requirement for an affidavit in a malpractice action is properly challenged in a defensive pleading seeking dismissal of the complaint for failure to state a claim, not by a summary judgment proceeding. Williams v. Hajosy, 210 Ga. App. 637, 436 S.E.2d 716 (1993).

Distinction between ordinary negligence and professional malpractice under § 9-11-9.1. - Trial court must decide as a matter of law if the negligence alleged by a plaintiff is, in fact, ordinary negligence or professional malpractice, requiring an expert's affidavit under O.C.G.A. § 9-11-9.1. Drawdy v. DOT, 228 Ga. App. 338, 491 S.E.2d 521 (1997).

Failure to comply with a mediation provision before filing a petition for modification of a divorce decree made the petition subject to a motion to dismiss for failure to state a claim and, although the defendant failed to raise this defense in the initial answer, the defense was not waived. Gould v. Gould, 240 Ga. App. 481, 523 S.E.2d 106 (1999).

Prosecution by one not proper party plaintiff.

- When a motion to dismiss pursuant to paragraph (b)(6) of O.C.G.A. § 9-11-12 is made based on the prosecution of a suit by one not the proper party plaintiff, such a motion is to be treated like a matter in abatement, in that the erring party, rather than having judgment entered against the party, is now simply precluded from proceeding with the suit until the error has been corrected by the substitution of the proper party plaintiff. Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859, 344 S.E.2d 742 (1986).

Conversion to summary judgment motion.

- Motion to dismiss, as considered by the trial judge after hearing evidence, must be treated as a motion for summary judgment. Daylight Indus., Inc. v. Allen, 123 Ga. App. 69, 179 S.E.2d 542 (1970).

Consideration of evidence on motion under paragraph (b)(6) of this section converts the motion into a summary judgment motion as summary judgment goes to the merits. Chatham v. Royal-Globe Ins. Cos., 135 Ga. App. 59, 217 S.E.2d 308 (1975).

When on a hearing on a motion to dismiss a complaint because of failure to state a claim, evidence is introduced and admitted by the court, a motion to dismiss is converted to one for summary judgment. Jaynes v. Douglas, 147 Ga. App. 678, 250 S.E.2d 14 (1978).

When a motion to dismiss is supplemented by argument of counsel and matters outside of the pleadings, it is treated as a motion for summary judgment. Blasingame v. Blasingame, 249 Ga. 791, 294 S.E.2d 519 (1982).

Motion to dismiss for failure to state a claim was converted into one for summary judgment when the letter upon which the disputed claim was founded, not made part of the pleadings, was yet clearly considered by the trial court and the plaintiffs did not object to the court's consideration of this extrinsic evidence, nor did the plaintiffs raise any issue concerning the procedural limitations applicable to hearings on motions for summary judgment. Davidson v. American Fitness Ctrs., Inc., 171 Ga. App. 691, 320 S.E.2d 824 (1984).

When the court considered evidence and granted summary judgment, a motion to dismiss was subsumed and left nothing independent of it to review. Evans v. Richardson, 189 Ga. App. 751, 377 S.E.2d 521 (1989).

Despite the trial court's statement that the court was considering a motion to dismiss, when the motion was supplemented by affidavits of the parties and matters outside the pleadings, the motion was therefore converted into a motion for summary judgment. White House, Inc. v. Winkler, 202 Ga. App. 603, 415 S.E.2d 185 (1992).

Reversible error occurred when the trial court granted the defendant's motion to dismiss, after converting the motion into one for summary judgment on the ground that matters outside the pleadings were considered, without providing the plaintiff with notice and an opportunity to present evidence. Sumner v. Department of Human Resources, 225 Ga. App. 91, 483 S.E.2d 602 (1997).

Trial court erred when the court converted the defendant mother's motion to dismiss to a motion for summary judgment and then granted the motion without providing notice to the plaintiff father of the conversion and an opportunity to submit evidence and be heard within 30 days. Simmons v. Brady, 251 Ga. App. 717, 555 S.E.2d 94 (2001).

When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to O.C.G.A. § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006).

Trial court properly dismissed a class action suit arising out of a breach of a lease agreement and filed by a group of uninsured patients against a hospital for failure to state a claim upon which relief could be granted, which the court converted to a motion for summary judgment, as the class members: (1) failed to timely object to the merits of the oral motion; (2) acquiesced to the evidence in support of the motion; and (3) failed to show they were third-party beneficiaries of the agreement with sufficient standing to sue upon a breach of its terms. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505, 634 S.E.2d 452 (2006).

When a party did not object in the trial court to the conversion of a motion to dismiss for failure to state a claim into one for summary judgment, and the party did not challenge or address the conversion on appeal, any objection to the conversion was waived. Action Concrete v. Portrait Homes - Little Suwanee Point, LLC, 285 Ga. App. 650, 647 S.E.2d 353 (2007).

When a trial court's order granting a motion to dismiss under O.C.G.A. § 9-11-12(b)(6) was based on the parties' agreement, which was attached to and incorporated in the pleadings, the trial court's consideration of the motion did not convert the motion to dismiss to a motion for summary judgment. Brown v. Gadson, 288 Ga. App. 323, 654 S.E.2d 179 (2007), cert. denied, No. S08C0456, 2008 Ga. LEXIS 236 (Ga. 2008).

Not converted into summary judgment motion when no evidence introduced.

- Motion to dismiss for failure to state a claim upon which relief can be granted is not converted into a motion for summary judgment when there is absolutely no evidence introduced. Holloway v. Dougherty County Sch. Sys., 157 Ga. App. 251, 277 S.E.2d 251 (1981).

When matter outside the pleadings was presented to and not excluded by the court in disposition of motions for dismissal for failure to state a claim, such motions must be treated as motions for summary judgment. Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971); Bays v. River Oaks Constr., Inc., 244 Ga. App. 401, 535 S.E.2d 543 (2000).

Support of motion by affidavits or depositions.

- When a motion to dismiss plaintiff's petition for failure to state a claim on which relief may be granted is supported by affidavits or depositions, the motion should be treated as a motion for summary judgment. Brackett v. H.R. Block & Co., 119 Ga. App. 144, 166 S.E.2d 369 (1969); McGill v. Allis-Chalmers Credit Corp., 133 Ga. App. 700, 212 S.E.2d 27 (1975).

Failure to file expert affidavit.

- Husband's pro se wrongful death action against a doctor and health service providers was dismissed for failure to attach an expert affidavit under O.C.G.A. § 9-11-9.1, which was the equivalent of a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6), when the husband alleged negligence due to the doctor's issuance of a do not resuscitate order with respect to the husband's wife; such an action involved professional negligence and medical questions and, thus, required an expert affidavit. Hardwick v. Atkins, 278 Ga. App. 79, 628 S.E.2d 173 (2006).

Motion to dismiss for failure to file an expert affidavit under O.C.G.A. § 9-11-9.1 had to be considered as a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6). Burke v. Paul, 289 Ga. App. 826, 658 S.E.2d 430 (2008).

Read in the son and the administrator's favor, the new complaint adequately pled fraud, battery, conspiracy, and wrongful death against the doctors, the nurses, and the hospital as the complaint asserted that the doctor knowingly and falsely represented to the family that the deceased's comatose condition was the result of metastasized cancer rather than aspiration, and that the doctor's intention in doing so was to deceive the family as to its actual cause. The complaint also asserted that the second doctor and the nurses were complicit in the doctor's misrepresentations and assisted the doctor in the deception of the family; that the family relied on the misrepresentations when the failly agreed to admit the deceased to hospice care; and that as a proximate result of being admitted to hospice, the deceased was denied food and water and suffered renal failure. Therefore, because the son and the administrator were not required to support their adequately pled claims for fraud, battery, and conspiracy with an O.C.G.A. § 9-11-9.1 affidavit, the trial court erred when the court granted the motion to dismiss the claims. Estate of Shannon v. Ahmed, 304 Ga. App. 380, 696 S.E.2d 408 (2010).

Affidavits made in support of motions under subsection (b) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) must conform to the requirements of former Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56(e)). McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977).

Notice of conversion to summary judgment motion required.

- When a motion to dismiss is converted to one for summary judgment, the opposing party must be given 30-days notice of the motion. Jaynes v. Douglas, 147 Ga. App. 678, 250 S.E.2d 14 (1978).

Plaintiffs are entitled to notice of conversion of a motion to dismiss into a motion for summary judgment and 30 days to respond to such motion. Williams v. Columbus, 151 Ga. App. 311, 259 S.E.2d 705 (1979); Odum v. Montgomery, 249 Ga. App. 211, 547 S.E.2d 770 (2001).

In an interpleader action involving a dispute over the payment of health insurance benefits, the trial court properly granted the hospital's motion for a judgment on the pleadings as there was no genuine issue of fact that the hospital was owed the amount for the medical expenses at issue and the trial court found that a purported settlement agreement between the employee's counsel and the hospital for less than the full amount was unenforceable as it lacked consideration. The employee agreed to waive oral argument on all motions pending before the trial court and, therefore, acquiesced in the trial court's procedure of treating the hospital's motion for judgment on the pleadings as one for summary judgment, therefore, the trial court did not err in treating the hospital's motion as such without providing formal notice or in failing to hold a hearing on that motion. Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 677 S.E.2d 328 (2009).

Notice required unless waived by opposing party.

- There must be proper notice of a motion for summary judgment, and if the motion is to be heard on oral testimony, proper notice must be given to the opposite party, unless notice is waived. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

Absent waiver, trial court may not convert a motion to dismiss to a motion for summary judgment without affording the opposing party the required statutory notice. Sibley v. City of Atlanta, 152 Ga. App. 723, 263 S.E.2d 698 (1979).

Motion for summary judgment may be made orally at a hearing for temporary relief. Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976).

It was harmless error for court to proceed, over the plaintiff's objection, to receive evidence and consider motion to dismiss as one for summary judgment, without allowing the plaintiff time to prepare the plaintiff's evidence since the plaintiff and an officer of the defendant company were both present at the initial hearing, testified, and were cross-examined, all relevant documentary evidence was identified and admitted, and the evidence showed that there was no material issue of fact to be determined but only two questions of law. Leach v. Midland-Guardian Co., 127 Ga. App. 562, 194 S.E.2d 260 (1972).

Evidence must demand finding.

- In summary judgment hearings under subsection (b) of Ga. L. 1972, p. 689, § 4 and 5 (see now O.C.G.A. § 9-11-12) and under Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56), evidence must demand a finding that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

Consideration of exhibits.

- In city's suit against a landowner for specific performance of parties' agreement, city's complaint attached the parties' agreement along with several other exhibits, which under O.C.G.A. § 9-11-10(c) were properly considered by the trial court in ruling upon the landowner's motion to dismiss under O.C.G.A. § 9-11-12(b)(6). Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 660 S.E.2d 858 (2008).

Ruling on motion to dismiss when matters outside pleadings presented.

- It is not necessary to rule on motion to dismiss when matters outside the pleadings are presented to the court and the motion is treated as one for summary judgment. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969).

Appellate court not to broaden base of trial court's ruling.

- When no motion for summary judgment is made, and it appears from the order of the trial court that judgment was entered on consideration of the petition only, without reference to the defendant's pleadings or the affidavit contained in the record, the appellate court cannot broaden the base of the trial court's ruling, but will look only to the petition to determine whether it should have been dismissed. Brackett v. H.R. Block & Co., 119 Ga. App. 144, 166 S.E.2d 369 (1969); McGill v. Allis-Chalmers Credit Corp., 133 Ga. App. 700, 212 S.E.2d 27 (1975).

Motion for summary judgment on basis of complaint equivalent to motion to dismiss.

- When motion for summary judgment is made by the defendant solely on the basis of the complaint, the motion is functionally equivalent to a motion to dismiss for failure to state a claim, and the complaint should be liberally construed in favor of the complainant, with the facts alleged in the complaint taken as true. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

Effect of pretrial order on filing motion.

- It was inappropriate for the court to entertain the defendants' oral motion to dismiss for failure to state a claim made at the call of the case for trial when the pretrial order required all further motions to be filed at least 30 days prior to trial. Irvin v. Lowe's of Gainesville, Inc., 165 Ga. App. 828, 302 S.E.2d 734 (1983).

Alleging conspiracy does not prevent dismissal of statutorily abolished cause of action.

- Inasmuch as the main cause of action for alienation of a minor son's affections alleged in the complaint has been abolished statutorily, the trial court was correct in dismissing the complaint, although the plaintiff ingeniously camouflaged the plaintiff's suit with an allegation of conspiracy. Hyman v. Moldovan, 166 Ga. App. 891, 305 S.E.2d 648 (1983).

When plaintiff, having received nothing for the plaintiff's claimed homestead exemption, commenced an action against the clerk of superior court for the amount of the plaintiff's homestead exemption, alleging that the loss thereof was because the defendant had failed to record the deeds, but the plaintiff had no aggregate interest in the property against which to assert the plaintiff's claimed homestead exemption, the plaintiff had no claim upon which relief could be granted, and the defendant was entitled to summary judgment as a matter of law. Wallis v. Clerk, Superior Court, 166 Ga. App. 775, 305 S.E.2d 639 (1983).

Legal malpractice action based on the attorneys' failure to file a workers' compensation claim on the plaintiff's behalf prior to the expiration of the applicable one-year statute of limitation was not subject to dismissal for failure to state a claim based on the contention that it was premature because the workers' compensation claim had not been adjudicated as barred by the statute of limitation. Sapp v. Coshatt, 245 Ga. App. 549, 538 S.E.2d 193 (2000).

Tortuous interference with prospective business.

- Dismissal of a husband's claim for "unlawful interference with prospective economic advantage," which was apparently a claim of tortious interference with potential business relations, was properly dismissed under O.C.G.A. § 9-11-12(b)(6) and did not violate the husband's Sixth and Seventh Amendment constitutional rights when the husband alleged that an attorney's prosecution of three appeals on behalf of the husband's wife and child was ultimately unsuccessful, and the husband might have experienced some financial benefit had the appeals been successful. These allegations in no way asserted or demonstrated: (1) improper action or wrongful conduct by the attorney; (2) that the attorney acted with the intent to injure; (3) that the attorney caused a party to fail to enter into an anticipated business relationship with the husband; or (4) that the attorney's conduct damaged the husband. Crane v. Albertelli, 264 Ga. App. 910, 592 S.E.2d 684 (2003), cert. denied, 543 U.S. 819, 125 S. Ct. 481, 160 L. Ed. 2d 359 (2004).

Failure to state a claim by third party beneficiaries.

- Trial court did not err in granting a clinic's motion under O.C.G.A. § 9-11-12(b)(6) to dismiss for failure to state a claim the patients' action alleging that the patients were entitled to damages for breach of contract after the clinic where the patients received free outpatient dialysis treatment notified the patients that the clinic was closing because the complaint failed to state a claim that the patients were entitled as third-party beneficiaries to sue for breach of the contract between the clinic and another medical provider to provide free dialysis treatment for one year after the clinic closed. The contract did not clearly show on the contract's face that the contract was intended for the benefit of the patients as required under O.C.G.A. § 9-2-20(b), and the contract plainly showed that there was no intent to confer third-party beneficiary status on existing clinic outpatients. Andrade v. Grady Mem'l Hosp. Corp., 308 Ga. App. 171, 707 S.E.2d 118 (2011).

Not grounds for dismissal for failure to state claim.

- While failure to name an individual as a party might be the basis for corrective action as prescribed in Ga. L. 1972, p. 689, § 7 (see now O.C.G.A. § 9-11-19), it is not cause for dismissal of the complaint under grounds of failure to state a claim upon which relief can be granted. Empire Banking Co. v. Martin, 133 Ga. App. 115, 210 S.E.2d 237 (1974).

When not specifically raised, failure to name an indispensable party will not subject a claim toa motion to dismiss. Empire Banking Co. v. Martin, 133 Ga. App. 115, 210 S.E.2d 237 (1974).

Parties may be dropped or added by order of court on motion of any party or of the party's own initiative, at any stage of the action, including appeal, and on such terms as are just. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).

When there has been a nonjoinder of a necessary party, such party may be added on motion of any party or by the court on the court's own initiative. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).

When failure to join party amendable defect on appeal.

- When question of an indispensable party is expressly passed upon by the trial court, it will be held that the plaintiff had necessary opportunity to seek addition of such party, but in absence of any disclosure by the record of an intent to raise or pass upon such question in the trial court, such defect will be deemed an amendable defect. King v. King, 228 Ga. 818, 188 S.E.2d 502 (1972).

When question of an indispensable party is expressly passed upon by the trial court, it will be held that the plaintiff had such notice as would have afforded the plaintiff an opportunity to seek the addition of such party, but when neither a motion to dismiss nor judgment of the trial court disclosed any intent to raise or pass upon such question, it will be deemed, for purpose of review of judgment overruling a motion to dismiss for failure to state a claim, as an amendable defect. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).

Summary judgment improper.

- Since a real-party-in-interest objection is a matter in abatement and does not go to the merits of an action, such an objection cannot be disposed of by means of summary judgment but is properly disposed of pursuant to a motion to dismiss. Fleming v. Caras, 170 Ga. App. 579, 317 S.E.2d 600 (1984).

Related to summary judgment.

- Motion for judgment on the pleadings is closely related to a motion for summary judgment. Dukes v. Joyner, 234 Ga. 526, 216 S.E.2d 822 (1975).

Equivalence to motion to dismiss.

- When party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of the party's motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Seaboard Coast Line R.R. v. Dockery, 135 Ga. App. 540, 218 S.E.2d 263 (1975).

When the defendant filed a motion for judgment on the pleadings but did not submit any affidavits, depositions, or interrogatories in support of the motion, the motion was treated as a motion to dismiss for failure to state a claim upon which relief could be granted. Cox v. Turner, 268 Ga. App. 305, 601 S.E.2d 728 (2004).

Admissions of movant on motion for judgment on pleadings.

- For purposes of the defendant's motion for judgment on the pleadings, all well-pleaded allegations of the plaintiff's complaint are taken as true and all allegations of defendant's affirmative defense are taken as false. Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 195 S.E.2d 674 (1973).

For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of opposing party's pleading are taken as true, and all allegations of the moving party which have been denied are taken as false. Pressley v. Maxwell, 242 Ga. 360, 249 S.E.2d 49 (1978).

For the purposes of a subsection (c) motion, all well-pleaded material allegations of the opposing party's pleadings are taken as true, and all allegations of the moving party which have been denied are taken as false, but conclusions of law are not so admitted. Seaboard Coast Line R.R. v. Dockery, 135 Ga. App. 540, 218 S.E.2d 263 (1975); Christner v. Eason, 146 Ga. App. 139, 245 S.E.2d 489 (1978).

When a party makes a motion for judgment on the pleadings, the party admits, for the purposes of the motion, the truth of the party's adversary's allegations, and the party is also deemed to have admitted that those allegations which have been denied by the adversary are false. Allen v. Myers-Dickson Furn. Co., 122 Ga. App. 194, 176 S.E.2d 508 (1970).

After denial of motion, movant's admissions not binding.

- After denial of a motion for judgment on the pleadings, admissions made by the moving party are not binding and conclusive so as to preclude the moving party from contending and proving at trial that denials in the moving party's answer of allegations of the moving party's opponent are true. Allen v. Myers-Dickson Furn. Co., 122 Ga. App. 194, 176 S.E.2d 508 (1970).

Concessions made by party on motion for judgment on pleadings do not continue over for separate consideration of adversary's motion for judgment on the pleadings. Allen v. Myers-Dickson Furn. Co., 122 Ga. App. 194, 176 S.E.2d 508 (1970).

Moving party must be clearly entitled to judgment.

- Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Seaboard Coast Line R.R. v. Dockery, 135 Ga. App. 540, 218 S.E.2d 263 (1975); Christner v. Eason, 146 Ga. App. 139, 245 S.E.2d 489 (1978).

Pleadings must affirmatively show that no claim in fact exists.

- Since to justify a judgment on the pleadings the pleadings must affirmatively show that no claim in fact exists, the appellant's pleadings alleging the appellee's violation of a federal act were not sufficient to justify a judgment on the pleadings since the federal act did not at all address the appellant's allegations against the appellee. Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 337 S.E.2d 770 (1985), appeal dismissed and cert. denied, 479 U.S. 803, 107 S. Ct. 45, 93 L. Ed. 2d 7 (1986).

When plaintiff may not move for judgment on pleadings.

- Plaintiff may not move for judgment on th pleadings when the answer raises issues of fact which if proved would defeat recovery. Kramer v. Johnson, 121 Ga. App. 848, 176 S.E.2d 108 (1970).

Judgment granted when complaint time barred.

- In a medical malpractice action, when the averments in the complaint clearly showed that the negligent or wrongful act or omission occurred in March 1984, and the complaint was not filed until June 1995, the complaint was barred by O.C.G.A. § 9-3-71(b) (five-year limitation period) and the court did not err by granting judgment on the pleadings to the defendants. Braden v. Bell, 222 Ga. App. 144, 473 S.E.2d 523 (1996).

When motion for judgment on pleadings is based on insufficiency of the complaint, the motion should not be granted unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980).

Complete failure to state cause or defense.

- Granting of a motion for judgment on the pleadings under subsection (c) of this section is proper only when there is a complete failure to state a cause of action or defense. Pressley v. Maxwell, 242 Ga. 360, 249 S.E.2d 49 (1978); Howard v. Bank S., 209 Ga. App. 407, 433 S.E.2d 625 (1993); Maxwell v. Cronan, 241 Ga. App. 491, 527 S.E.2d 1 (1999).

Under a final judgment on a separate maintenance action, the property divided between the parties became the separate estate of each party to whom it was awarded. Therefore, when the husband brought an action two years later, alleging the parties reconciled and cohabited prior to the wife's death, arguing the reconciliation rendered the agreement on the separate maintenance action void so that the property which the wife attempted to dispose of by will was not hers, there was a complete failure to state a cause of action and the trial court properly granted judgment on the pleadings. Gideon v. Farlow, 258 Ga. 633, 373 S.E.2d 362 (1988).

When the plaintiff sued the defendant for malicious prosecution, after the defendant's request for a criminal arrest warrant against the plaintiff was dismissed and no arrest warrant was issued, the trial court properly granted the defendant's motion for judgment on the pleadings because the undisputed lack of the issuance of a valid warrant, accusation, indictment, or summons was fatal to the plaintiff's malicious prosecution claim. Cox v. Turner, 268 Ga. App. 305, 601 S.E.2d 728 (2004).

Because the minority members of a limited liability company failed to show at least one of the four criteria required for the members to proceed directly instead of derivatively, and the complaint was replete with general allegations of injuries separate and apart from the other shareholders, but the allegations did not demonstrate how this was true, judgment on the pleadings was properly entered against the minority members. Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 639 S.E.2d 570 (2006).

Because O.C.G.A. § 33-4-7 applied only to an insurer's bad faith in responding to claims for property damage, an insurer was properly granted a judgment on the pleadings as a complaint asserting that the insurer acted in bad faith in responding to a claimant's claims for personal injury failed to state a claim upon which relief under the statute could be granted. Mills v. Allstate Ins. Co., 288 Ga. App. 257, 653 S.E.2d 850 (2007).

Lack of standing.

- Employee's action to enjoin the enforcement of a non-compete clause in a contract between the employer and the employee's desired physician, which was treated as a judgment on the pleadings on appeal, was properly dismissed on standing grounds as the employee was neither a party to the contract nor an intended beneficiary of the contract. Haldi v. Piedmont Nephrology Assocs., P.C., 283 Ga. App. 321, 641 S.E.2d 298 (2007).

Judgment erroneously denied when court lacked jurisdiction over contempt petition.

- Because a trial court lacked jurisdiction to entertain a petition to hold a spouse in contempt of a divorce decree entered in another county in the absence of a petition to modify the decree, the trial court erred in denying that spouse's motion for judgment on the pleadings, or in the alternative, for a change of venue to that county's court that rendered the original judgment of divorce. Jacob v. Koslow, 282 Ga. 51, 644 S.E.2d 857 (2007).

Judgment on pleadings on one of several counts.

- In interest of saving time, it is practical for a trial judge to enter judgment on the pleadings as to one count of a complaint if such count is subject to the motion, even though the movant may not be entitled to such judgment as to all counts. First Nat'l Bank v. Osborne, 233 Ga. 602, 212 S.E.2d 785 (1975).

Time for appeal of partial judgment on pleadings.

- Partial judgment on the pleadings, when no matter outside the pleadings was presented or considered by the court, was not a partial summary judgment, and the plaintiffs had the right to await entry of final judgment disposing of the entire case before the plaintiffs entered an appeal. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974).

Treatment of averments.

- In an action to recover under a payment bond filed by a supplier, because the pleadings did not show that the supplier was unable to establish a defect in the notice of commencement, and a general contractor averred in its first affirmative defense that it had filed a notice of commencement with the Clerk of the Superior Court of Fulton County and had posted the notice of commencement at the project site, such an averment had to be considered to be denied by the supplier for purposes of a motion for judgment on the pleadings. Consol. Pipe & Supply Co. v. Genoa Constr. Servs., Inc., 279 Ga. App. 894, 633 S.E.2d 59 (2006).

When facts show without dispute scheme to extract more than legal rate of interest for the use of money, such question need not be submitted to the jury, and it is not error for the trial court to grant the plaintiff's motion for a judgment on the pleadings under subsection (c) of this section. Cook v. Young, 225 Ga. 26, 165 S.E.2d 727 (1969).

Complaint sufficiently stated a promissory estoppel claim since the complaint alleged that a parent had repeatedly promised the parent's child that the parent would pay one-half of the costs of the child attending a private historically African-American college or university, that relying on this promise, the child applied to and was accepted into such a school, foregoing opportunities to apply to and enroll in other colleges or universities of significantly less cost, that the parent nevertheless refused to honor the parent's commitment, and that to avoid injustice, the parent should have been required to honor the parent's promise; thus, the trial court erred in granting the parent's motion to dismiss. Houston v. Houston, 267 Ga. App. 450, 600 S.E.2d 395 (2004).

Divorce granted on ground for irretrievable brokenness should be granted to both parties equally, and while such divorce may properly be granted on the pleadings, the divorce should be granted to both parties. Herring v. Herring, 237 Ga. 771, 229 S.E.2d 756 (1976).

Factual issues in restrictive covenant dispute.

- In an agent's suit against an insurance company seeking to invalidate restrictive covenants in an agreement to sell insurance products, the court held that the trial court properly denied the agent's motion for judgment on the pleadings as to a confidential and proprietary information provision because it could not be said as a matter of law that the information defined as such did not constitute a trade secret or merely confidential information relating to the company's business. Holland Ins. Group, LLC v. Senior Life Ins. Co., 329 Ga. App. 834, 766 S.E.2d 187 (2014).

Judgment on the pleadings properly granted.

- In a declaratory judgment action seeking a declaration as to the enforceability of non-compete clauses in an employment contract, the trial court properly granted the competitor judgment on the pleadings because it correctly found that the pleadings showed that the lack of any limit on the scope of the restricted work or the solicitation of former customers were void and unenforceable under the non-severability rule as a matter of law. Lapolla Indus. v. Hess, 325 Ga. App. 256, 750 S.E.2d 467 (2013).

Judgment on the pleadings proper under firemen's rule.

- Trial court properly granted judgment on the pleadings pursuant to O.C.G.A. § 9-11-12 to a chemical company in an injured party's claims arising from exposure to chemicals while working as an emergency medical technician (EMT), as EMTs were included under Georgia's firemen's rule, and the injured party thus could not recover for the underlying negligence which caused the chemical spill. Kapherr v. MFG Chem., Inc., 277 Ga. App. 112, 625 S.E.2d 513 (2005).

Judgment on the pleadings reversed.

- Construing the pleadings in a light most favorable to showing a question of fact, in an action in which: (1) the pleadings did not disclose with certainty that a supplier would not be entitled to relief in the supplier's action against a general contractor and the contractor's surety; and (2) the appeals court did not consider the supplier's averments that its "Notice to Owner/Contractor" complied with O.C.G.A. §§ 10-7-31 and44-14-361.5 or its admission that it received a copy of the notice of commencement to establish that the general contractor's notice of commencement was otherwise proper and timely filed as required by the statutes, the general contractor and the contractor's surety were not entitled to judgment on the pleadings. Consol. Pipe & Supply Co. v. Genoa Constr. Servs., Inc., 279 Ga. App. 894, 633 S.E.2d 59 (2006).

In a worker's suit alleging negligence on the part of a county with regard to the county allegedly failing to properly instruct and supervise the worker in the use of a portable tar kettle machine, the trial court erred by granting the county's motion for a judgment on the pleadings based on sovereign immunity as the worker sufficiently alleged that the machine was a vehicle as contemplated by O.C.G.A. § 33-24-51, which established a waiver of sovereign immunity if the county had purchased liability insurance to cover damages and injuries arising from the use of motor vehicles under the county's management. Hewell v. Walton County, 292 Ga. App. 510, 664 S.E.2d 875 (2008).

Trial court erred by granting judgment on the pleadings against the employee on the employee's claim that the manager tortiously interfered with the employee's employment contract with the employer. To the extent the complaint alleged that the manager took tortious actions as a stranger to the employment contract that contributed to the employee's termination, the complaint stated a cause of action; the employee alleged that the manager, while not employed by the employer, solicited and obtained an agreement with the chief financial officer to terminate the employee after the manager was re-hired. Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 729 S.E.2d 625 (2012).

Trial court erred by granting an auto dealership judgment on the pleadings as to a buyer's consumer fraud suit because it could not be said, as a matter of law, that the buyer would not be unable to show that the reliance on representations that the minivan was undamaged and never had been in a wreck was reasonable. Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156, 766 S.E.2d 24 (2014).

In a dispute over ownership of church property, the trial court erred in granting judgment on the pleadings for a church because the pleadings did not completely fail to state a defense, or a cause of action in the counterclaim as neither the church nor the trust pled an unassailable claim of ownership; thus, the case was not a proper one for judgment on the pleadings. Williams v. Deliverance Temple Church of God In Christ of Atlanta, 338 Ga. App. 123, 789 S.E.2d 372 (2016).

Scope of summary judgment procedure.

- Defenses enumerated, except paragraph (b)(6) of O.C.G.A. § 9-11-12, failure to state a claim upon which relief can be granted, are matters in abatement that are not within the scope of the summary judgment procedure. International Indem. Co. v. Blakey, 161 Ga. App. 99, 289 S.E.2d 303 (1982).

Right to a hearing.

- Trial court erred in failing to grant a client's request for a hearing on a former attorney's motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. Under O.C.G.A. § 9-11-12(b), the motion was required to be treated as one for summary judgment and disposed of as provided in O.C.G.A. § 9-11-56, and all parties were to be given a reasonable opportunity to present all material made pertinent to such a motion. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322 (2009).

Hearing when no motion filed.

- In a procedural context, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, sanctions the hearing of a motion for a summary judgment even though no such motion is ever filed. Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746, cert. denied, 188 Ga. App. 912, 374 S.E.2d 746 (1988).

Procedural defects waived.

- Although the trial court converted the defendant limited liability company's (LLC's) motion to dismiss the plaintiff sanitation company's action into a motion for summary judgment when the court considered matters outside the pleadings, the appellate court refused to reverse the trial court's judgment finding that an agreement which allowed the sanitation company to purchase the LLC for $500,000 less than any amount offered by a third party was an unreasonable restraint on alienation because the trial court allowed the sanitation company to introduce evidence in support of the company's claims. RTS Landfill, Inc. v. Appalachian Waste Sys., LLC, 267 Ga. App. 56, 598 S.E.2d 798 (2004).

O.C.G.A.

§ 9-11-12(b)(6) motion may be treated as one for summary judgment. - So long as the parties are afforded sufficient time within which to file affidavits and other evidentiary materials, a trial court sua sponte can treat a paragraph (b)(6) motion under O.C.G.A. § 9-11-12 as one for summary judgment even though neither party has introduced a matter outside of the pleadings. Zepp v. Mayor of Athens, 180 Ga. App. 72, 348 S.E.2d 673 (1986).

Authority of court to consider matter outside pleadings.

- While a petition may amply meet the liberalized requirements of notice pleading under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), so as to preclude dismissal from consideration of the petition alone, the court has authority to consider matters outside the pleadings, if presented, and if the court does, the court must dispose of the matter under summary judgment procedures. Kiker v. Hefner, 119 Ga. App. 629, 168 S.E.2d 637 (1969); Gaddy v. Thomasson, 172 Ga. App. 876, 324 S.E.2d 817 (1984); Jim Altman Ins., Inc. v. Zorn & Son Ins. Agency, Inc., 184 Ga. App. 575, 362 S.E.2d 142 (1987).

Because the trial court, without objection, considered a contract between the parties and both parties relied heavily on the contract language before the trial court, the movant's motion to dismiss was converted to a motion for summary judgment under O.C.G.A. § 9-11-12(b). Cox v. Athens Reg'l Med. Ctr., Inc., 279 Ga. App. 586, 631 S.E.2d 792 (2006).

Order covering matters not pled.

- When order granting judgment against the appellant mentions matters not raised by the pleadings, it might be assumed that a motion for judgment on the pleadings was converted to a motion for summary judgment by consideration of matters outside the pleadings. Williams v. Parnell, 162 Ga. App. 573, 292 S.E.2d 425 (1982).

When the trial court considered matters outside the pleadings in deciding the plaintiff's motion to dismiss a counterclaim, the court was obligated to treat the motion as a motion for summary judgment and, since the required hearing was not held pursuant to O.C.G.A. § 9-11-56, the court's order was not amenable to appeal as a final judgment. American Car Rentals, Inc. v. Walden Leasing, Inc., 215 Ga. App. 621, 451 S.E.2d 537 (1994).

Notice of conversion of motion to motion for summary judgment.

- In summary judgment hearings under subsection (c) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) and under Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56), there must be proper notice; if it is to be heard on oral testimony, proper notice must be given to the opposite party, unless notice is waived. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

When, under subsection (c) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12), a motion for judgment on the pleadings is converted to one for summary judgment, the nonmoving party is entitled to notice of the motion as required by Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56(c)). Harkins v. Harkins, 153 Ga. App. 104, 264 S.E.2d 572 (1980).

Attachment of an affidavit to a motion to dismiss does not constitute notice that the motion will be converted to a motion for summary judgment. Until the trial court decides whether to consider or exclude matters outside the pleadings, the mere attachment of an affidavit to a motion to dismiss should not be construed to constitute notice of the conversion of that motion to dismiss into a summary judgment motion. Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990).

In a case alleging unfair employment termination, the trial court's failure to notify the employee of the trial court's conversion of the employer's motion to dismiss to a summary judgment motion and the court's failure to give the employee at least 30 days to respond, although error, was not reversible when the employee failed to show that the employee was harmed by this deficiency in the notice; when the employee failed to provide the appellate court with a transcript of the summary judgment hearing, the trial court's summary judgment was presumed to have been correct on appeal and was affirmed. Bynum v. Horizon Staffing, 266 Ga. App. 337, 596 S.E.2d 648 (2004).

Trial court's failure to notify the plaintiffs that, pursuant to O.C.G.A. § 9-11-12(b), the court was converting the defendants' motion to dismiss to a summary judgment motion was not reversible error as the plaintiffs were afforded a full evidentiary hearing and failed to demonstrate any harm resulting from the lack of notice. Smith v. Chemtura Corp., 297 Ga. App. 287, 676 S.E.2d 756 (2009).

Opposing party entitled to additional 30 days.

- When a motion for judgment on the pleadings is converted into a motion for summary judgment, rules applicable to the latter come into play, including the length of time allowable after notice, and the opposing party is therefore entitled to an additional 30 days in which to present evidence in opposition thereto. Davis v. American Acceptance Corp., 119 Ga. App. 265, 167 S.E.2d 222 (1969).

Opportunity to be given to present pertinent material.

- Under subsection (c) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12), introduction of evidence converts motion for judgment on the pleadings into a motion for summary judgment, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Harkins v. Harkins, 153 Ga. App. 104, 264 S.E.2d 572 (1980).

Personal guarantor did not show that the guarantor was harmed by a trial court's converting a bank's motion for judgment on the pleadings to a motion for summary judgment because the guarantor did not show that given additional time the guarantor would have filed additional affidavits or other supporting documentation in response to the motion for summary judgment. Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012).

Unless motions for summary judgment and judgment on pleadings combined.

- When motion filed and heard contains a motion for summary judgment as well as a motion for judgment on the pleadings, and the motion for summary judgment was the only motion ruled upon, there is no requirement that the trial court offer to give the opposing party a reasonable opportunity to secure evidence or materials as the opposing party has already had notice that such would be required. Hanson v. Byers, 120 Ga. App. 298, 170 S.E.2d 315 (1969).

Evidence must demand finding.

- In summary judgment hearings under subsection (c) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) and under Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56), the evidence must demand a finding that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

No intention to render summary judgment shown.

- When the trial court denied the motion to dismiss for failure to state a claim on the ground that the complaint provided adequate notice of the claims and the court said "that's all you have to do," it is manifestly clear that the trial court was not intending to render a summary judgment. Ledford v. Meyer, 249 Ga. 407, 290 S.E.2d 908 (1982).

City's motion to dismiss on the ground of sovereign immunity should have been treated as a motion for summary judgment since the claim of immunity was based on the wording of the complaint and matters outside of the pleadings were considered by the court in reaching the court's decision. Peeples v. City of Atlanta, 189 Ga. App. 888, 377 S.E.2d 889 (1989).

When defendant's motion was styled as a motion to dismiss, but the record indicates that the trial court considered affidavits and discovery responses outside the original pleadings, the motion must be treated as a motion for summary judgment. Brooks v. Boykin, 194 Ga. App. 854, 392 S.E.2d 46 (1990).

Motion treated as one for summary judgment erroneously denied.

- Trial court's order denying dismissal of a fraud claim in a medical malpractice action against a doctor, upon a motion which the trial court treated as one for summary judgment when the court considered material beyond the pleadings, was reversed as there was no evidence that the doctor knew or even suspected that the patient had a pancreatic tumor, or that the doctor withheld information regarding the tumor; thus, the doctrine of equitable estoppel did not apply and the fraud claim was barred by the statute of repose, O.C.G.A. § 9-3-71(b). Balotin v. Simpson, 286 Ga. App. 772, 650 S.E.2d 253 (2007), cert. denied, 2007 Ga. LEXIS 803 (Ga. 2007).

Derivative action.

- Motion to dismiss a shareholder derivative action against a corporation, which was brought pursuant to O.C.G.A. § 9-11-12(b)(6) and which asserted that, under the business judgment rule and the decision of the committee to which the derivative action had been referred, the complaints had been resolved and the plaintiff therefore lacked standing to proceed against the corporation, was perhaps best considered as a hybrid summary judgment motion for dismissal because the stockholder plaintiff's standing to maintain the suit had been lost, but it did not fit neatly into a category described in subsection (b), nor did it correspond directly with O.C.G.A. § 9-11-56, since the question of genuine issues of fact on the merits of the stockholder's claim were not reached. Millsap v. American Family Corp., 208 Ga. App. 230, 430 S.E.2d 385 (1993).

Appeal from grant of motion to dismiss.

- Grant of a motion to dismiss predicated upon the failure to follow a procedural requirement of the Georgia Business Corporation Code, O.C.G.A. Ch. 2, T. 14, was not convertible to a summary proceeding and, as such, the general appellate process was applicable. McGregor v. Stachel, 200 Ga. App. 324, 408 S.E.2d 118 (1991).

Losing party's right to direct appeal.

- When motions to dismiss asserted, among other things, that the complaint failed to state a claim and the trial court considered material beyond the pleadings in ruling on the motions to dismiss, those motions were required to be treated as motions for summary judgment, and the losing party maintained the right to a direct appeal from an order granting partial summary judgment. City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007).

Preliminary hearing on matters in abatement.

- Preliminary hearing on defenses of lack of jurisdiction over the person or subject matter and improper venue, whether made in a pleading or by motion, may be heard and determined before trial on the application of any party. Marvin L. Walker & Assocs. v. A.L. Buschman, Inc., 147 Ga. App. 851, 250 S.E.2d 532 (1978).

Generally, when a motion to dismiss involves a factual issue as to a question of abatement, that is, lack of jurisdiction, improper venue, insufficiency of process, insufficiency of service of process or failure to join a party, the trial court is authorized to hear and determine these defenses before trial without a jury, or application of a party, unless the court orders that the hearing and determination thereof be deferred until trial. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

Preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue, whether made in a pleading or by motion, may be heard and determined before trial on the application of any party, and at such hearing factual issues shall be determined by the trial court; moreover, there is no reason why the same type of factual determination should not be made by the trial court in a motion to set aside. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

If motion to dismiss is to determine a jurisdictional issue, a question of abatement and not on the merits, prior to trial, a jurisdictional defense may be set down for hearing and determination made before trial based upon conflicting evidence. Williamson v. Williamson, 155 Ga. App. 271, 270 S.E.2d 692 (1980), aff'd, 247 Ga. 260, 275 S.E.2d 42, cert. denied, 454 U.S. 1097, 102 S. Ct. 669, 70 L. Ed. 2d 638 (1981).

Trial judge is authorized to determine all issues relating to a venue motion, including any conflict in the evidence. Daughtry v. Chaney-Bush Irrigation, Inc., 166 Ga. App. 708, 305 S.E.2d 439 (1983).

Presentation of evidence.

- All parties may present evidence at a hearing on a motion challenging the sufficiency of service, and factual issues shall be determined by the trial court. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).

Finding on question of venue.

- When the plaintiff argued that venue was a question of fact for a jury, and therefore should not have been determined by the court as a matter of law, but the record revealed that at a preliminary hearing pursuant to subsection (d) of O.C.G.A. § 9-11-12 the trial court, in the court's capacity as trier of fact, found the defendant was a resident of another county at the time of service, and further showed no demand for jury trial was made, nor was there objection to the judge trying the issue without a jury, it was held that the trial judge was authorized to determine the question of jurisdiction without a jury. Clements v. Hendi, 182 Ga. App. 118, 354 S.E.2d 700 (1987).

Jurisdictional questions involving factual issues may be tried by the court before trial. Hardy v. Arcemont, 213 Ga. App. 243, 444 S.E.2d 327 (1994).

Procedure when defenses made by answer.

- When the choice is made to make defenses enumerated by subsection (b) of this section by answer, a motion to dismiss on the same grounds cannot thereafter be brought, but the proper procedure is an application for a preliminary hearing under subsection (d). Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 220 S.E.2d 86 (1975).

Challenge to sufficiency of affidavit.

- As a motion to dismiss for an insufficient affidavit under O.C.G.A. § 9-11-9.1 is a motion to dismiss for failure to state a claim under O.C.G.A. § 9-11-12(b)(6), and as § 9-11-9.1 does not provide that § 9-11-12 is inapplicable, such a hearing is a permissible method by which to challenge the sufficiency of an affidavit. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994).

Application for a preliminary hearing may be made by motion under O.C.G.A. § 9-11-7(b). Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 220 S.E.2d 86 (1975).

Court has broad powers as to how court shall hold preliminary hearings. Sherwood Mem. Park v. Bryan, 142 Ga. App. 664, 236 S.E.2d 903 (1977).

Court may select method of presenting evidence, but may not refuse to hear evidence except to order that hearing and determination thereof be deferred until the trial. Sherwood Mem. Park v. Bryan, 142 Ga. App. 664, 236 S.E.2d 903 (1977).

All parties may present evidence at a hearing on a motion challenging the sufficiency of service, and factual issues shall be determined by the trial court. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).

Evidence at hearing under subsection (d).

- O.C.G.A. § 9-11-9.1 is only designed to preclude amendment under O.C.G.A. § 9-11-15 when the plaintiff completely fails to file an affidavit; thus § 9-11-9.1 does not preclude a plaintiff from presenting evidence of his or her expert's competency at a O.C.G.A. § 9-11-12(d) hearing when that expert's affidavit was initially filed with the complaint. Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994).

Imputing to trial court intent to rule on merits.

- When trial court does not indicate consideration of merits, reviewing court will not impute such a determination. When there is nothing in the record to suggest that the trial court notified parties prior to entry of judgment that the court would consider the merits of the claim or that the court's reasoning included consideration of merits on a de facto basis, the reviewing court will not impute such a determination to the trial court. Georgia Power Co. v. Harrison, 253 Ga. 212, 318 S.E.2d 306 (1984).

Questions of law.

- When a question of law was presented to the court by motion in limine, it was not an abuse of discretion in failing to set matter down for hearing. Phillips v. Marcin, 162 Ga. App. 202, 290 S.E.2d 546 (1982).

Hearing on motion.

- Subsection (d) of O.C.G.A. § 9-11-12 provides for hearing on motions raising defenses enumerated in subsection (b) of O.C.G.A. § 9-11-12 affording both parties an opportunity to present evidence and responsive argument. Newport Timber Corp. v. Floyd, 247 Ga. 535, 277 S.E.2d 646 (1981).

Replaces special demurrer.

- Motion for more definite statement is the modern replacement for a special demurrer. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Similar characteristics to demurrer.

- Motion for a more definite statement has some of the characteristics of a special demurrer in that it is not favored, and being a critic, it must itself be perfect in that it must state the grounds therefor and must point out the defect complained of and the details desired. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Special demurrer and motion for more definite statement distinguished.

- Test of a special demurrer and a motion for a more definite statement is vastly different: while a special demurrer lies to make the plaintiff set out facts more fully, so as to enable the defendant to prepare a defense, a motion for more definite statement lies only when the pleading is so indefinite that the defendant is unable to frame an answer thereto, and only with respect to a pleading to which another pleading must be filed. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Proper remedy for more particularity is motion for more definite statement or discovery.

- Proper remedy for seeking more particularity is by motion for a more definite statement at the pleading stage or by the rules of discovery thereafter. Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974); Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979); Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980); Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983).

Motion to dismiss counterclaim for failure to plead fraud and deceit with sufficient specificity made immediately preceding trial of case was properly denied since the proper remedy for seeking more particularity is by motion for a more definite statement at the pleading stage or by rules of discovery thereafter. Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819, 298 S.E.2d 512 (1982).

Remedy for failure to plead with particularity is a motion for more definite statement, not a motion to dismiss, until the pleader is unable and unwilling to amend the pleadings accordingly. Hall v. Churchwell's, Inc., 243 Ga. 852, 257 S.E.2d 272 (1979).

Motion to strike not remedy.

- When there is a failure to plead fraud with particularity, the correct remedy is not a motion to dismiss or to strike but a motion for more definite statement. White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Motions for more definite statement are not favored, inasmuch as discovery procedures should be used extensively to obtain such information. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

No substitute for discovery.

- Motions for more definite statement are not to be used merely as a substitute for discovery. Padgett v. Bryant, 121 Ga. App. 807, 175 S.E.2d 884 (1970).

Motion for more definite statement is not appropriate merely for compelling information which will possibly disclose a threshold defense for the purpose of positioning the movant to move for dismissal. DeWes Enters., Inc. v. Town & Country Carpets, Inc., 130 Ga. App. 610, 203 S.E.2d 867 (1974).

More definite statement was the proper remedy for the borrower's failure to indicate which misstatements supported the fraud and misrepresentation claims. Roberts v. JP Morgan Chase Bank, Nat'l Ass'n, 342 Ga. App. 73, 802 S.E.2d 880 (2017).

Ambiguous or vague pleadings.

- Motion for more definite statement lies only when the pleading is so indefinite that the defendant is unable to frame an answer thereto, and only with respect to a pleading to which another responsive pleading must be filed. Emerson v. Fleming, 127 Ga. App. 296, 193 S.E.2d 249 (1972).

Motion for a more definite statement may only be used when the pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, and a motion to dismiss is not a responsive pleading. DeWes Enters., Inc. v. Town & Country Carpets, Inc., 130 Ga. App. 610, 203 S.E.2d 867 (1974).

Unless pleadings are so vague and ambiguous that the defendant could not frame proper responsive pleadings thereto, a motion for a more definite statement should not be granted. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Enforcement of

§ 9-11-9 by motion for more definite statement. - Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9) itself contains no mechanism for enforcing the statute's terms, and the common practice has been to use subsection (e) of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12) for that purpose. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978); Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9), relating to pleading special matters, is not immune from the command of O.C.G.A. § 9-11-8(f) that pleadings be construed so as to do substantial justice and, thus, one context in which a somewhat liberal approach to the granting of motions under subsection (e) of Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-12) is appropriate is when the request for a more definite statement is used to enforce special pleading requirements of Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9(c)). McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Extreme action of dismissal of entire complaint should be taken only when the complaint had but one basis for recovery and motion for more definite statement was addressed to that sole basis. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

When there is a two-count complaint, failure to meet requirements of motion for a more definite statement as to one count would have no effect on the remaining count. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Dismissal of allegations of fraud for lack of specificity.

- When the plaintiff failed to allege fraud with necessary particularity and specificity following order of court to make a more definite statement of fraud, the proper remedy was to dismiss the allegations of the complaint relating to fraud. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Motion for more definite statement proper remedy in fraud case.

- When a trust beneficiary alleged a bank's fraud in the administration of the trust, and the bank alleged that the beneficiary did not plead fraud with sufficient specificity, the bank's proper course of action was to move for a more definite statement, under O.C.G.A. § 9-11-12(e), rather than to dismiss, as a pleading of a special matter, such as fraud, was not to be dismissed for failure to state a claim unless it appeared beyond doubt that the beneficiary could prove no set of facts in support of the beneficiary's claim which would entitle the beneficiary to relief. Goldston v. Bank of Am. Corp., 259 Ga. App. 690, 577 S.E.2d 864 (2003).

Special demurrer must specifically point out alleged imperfections in the pleadings.

- Special demurrer, being a critic, must itself be perfect, pointing out clearly and specifically the alleged imperfection in the pleading attacked by it, and laying its finger, as it were, upon the very point. Shaef Chem. Co. v. Cook, 106 Ga. App. 223, 126 S.E.2d 806 (1962) (decided under former Code 1933, § 81-304).

Special demurrers will be overruled when their grounds are confusing and uncertain since a demurrer must itself be free from defect. Smith v. Willoughby, 204 Ga. 570, 50 S.E.2d 364 (1948) (decided under former Code 1933, § 81-304).

All that a special demurrer requires of a petition is reasonable definiteness and certainty, and it does not require that the pleader must indulge in needless particularities. Cuttino v. Mimms, 98 Ga. App. 198, 105 S.E.2d 343 (1958) (decided under former Code 1933, § 81-304).

Information in defendant's knowledge.

- When information called for by a special demurrer is within the defendant's knowledge, overruling of the demurrer is not harmful error since the defendant is not thereby hindered from preparing a defense. Steed v. Harris, 52 Ga. App. 581, 183 S.E. 847 (1936) (decided under former Code 1933, § 81-304).

Proper judgment on a special demurrer going only to the meagerness of the allegations of a petition is not a judgment sustaining the demurrer and dismissing the petition, but a judgment requiring the pleader to amend and make a petition more certain in the particulars wherein the pleader has been delinquent. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935) (decided under former Code 1933, § 81-304).

Dismissal of part or all of petition for failure to amend.

- When a special demurrer to a petition is sustained, with leave to amend, and there is a failure to do so, the petition should be dismissed if the delinquency relates to the entire cause of action; but if the demurrer goes only to some particular part of the petition, the proper judgment is to strike the defective portion, and not to dismiss the entire action. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935); Sellers v. City of Summerville, 88 Ga. App. 109, 76 S.E.2d 99 (1953) (decided under former Code 1933, § 81-304).

When a special demurrer to a petition is sustained with leave to amend, and there is a failure or refusal to amend, the petition should be dismissed if the defect to delinquency relates to the entire cause of action. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951) (decided under former Code 1933, § 81-304).

When a special demurrer goes only to some particular part of a petition, without which a valid cause of action would still be set forth, the result of sustaining the special demurrer would be to strike the defective portion of the petition, not to dismiss the action. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951) (decided under former Code 1933, § 81-304).

When a defect which is the subject of special demurrer and which goes to the petition as a whole is sustained, the court should give the plaintiff time in which to amend, and when such time is given and plaintiff fails or refuses to cure the defect by amendment, the petition should then be dismissed. Rogers v. Adams, 98 Ga. App. 155, 105 S.E.2d 364 (1958) (decided under former Code 1933, § 81-304).

Minute particularity not required.

- Petition is not subject to special demurrer because the petition lacks minute particularity in averments of negligence, especially as to facts within the knowledge of the defendant. Colonial Stores, Inc. v. Stanley, 102 Ga. App. 645, 117 S.E.2d 245 (1960) (decided under former Code 1933, § 81-304).

Scope of subsection (f).

- Subsection (f) of O.C.G.A. § 9-11-12 does not embrace striking the substance of an entire claim or counterclaim. Specialized Alarm Servs., Inc. v. Kauska, 189 Ga. App. 863, 377 S.E.2d 703, cert denied, 189 Ga. App. 913, 377 S.E.2d 703 (1989).

Purpose.

- Purpose of a motion to strike is not to excise testimony allowed in without contemporaneous objection. The stated purpose is only to strike from pleadings any insufficient defense, redundant, immaterial, impertinent, or scandalous matter. Guthrie v. Bank S., 195 Ga. App. 123, 393 S.E.2d 60 (1990).

Four terms "redundant," "immaterial," "impertinent," and "scandalous," are not mutually exclusive; there is a certain amount of overlapping between the terms, particularly the first three. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974).

Meaning of "impertinence."

- "Impertinence" consists of any allegation not responsive or relevant to the issues involved in the action, and which could not be put in issue or be given in evidence between the parties. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974).

To determine whether a matter is impertinent, one must first determine the scope of the issues in controversy, and then determine whether the matter injected in the pleadings is relevant or material thereto. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974).

One test as to whether matter in a pleading is irrelevant, immaterial, or impertinent is whether evidence in support of it would be admissible. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).

Patently false and sham pleading.

- Trial court did not abuse the court's discretion in striking a legal malpractice complaint in which client's counsel sought to justify the failure to include a required expert affidavit by saying that time constraints that were caused by the limitations period did not permit the inclusion of an affidavit; the statement was patently false and a sham as counsel had twice previously filed and voluntarily dismissed complaints without the required affidavit. Smith v. Morris, Manning & Martin, LLP, 254 Ga. App. 355, 562 S.E.2d 725 (2002).

Motion to strike is not analogous to a motion for summary judgment. Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).

Only matters within pleadings to be considered.

- Absence of explicit provision for consideration of matters outside the pleadings is intentional, and upon a motion to strike the court may consider only matters within the pleadings. Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977).

Motion to strike not favored.

- Motions to strike, alleging redundant, immaterial, impertinent, or scandalous matter, are not favored. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974); Medlin v. Carpenter, 174 Ga. App. 50, 329 S.E.2d 159 (1985).

Unless it is clear that it can have no possible bearing upon the subject matter of the litigation, matter in pleadings will not be stricken; if there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974).

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); Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977); West v. Griggs, 144 Ga. App. 285, 241 S.E.2d 26 (1977).

Motion to strike an answer 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. Potpourri of Merrick, Inc. v. Gay Gibson, Inc., 132 Ga. App. 565, 208 S.E.2d 579 (1974).

Motion to strike an allegation in a complaint is not to be granted unless, construing the pleadings in a light most favorable to the plaintiff, the plaintiff can establish no set of facts that would entitle the plaintiff to relief against the defendant. Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 518 S.E.2d 704 (1999).

When a motion to strike defenses is not made without 30 days of service upon the plaintiff, the court does not abuse the court's discretion in refusing the motion, even if such defenses are legally insufficient. Potpourri of Merrick, Inc. v. Gay Gibson, Inc., 132 Ga. App. 565, 208 S.E.2d 579 (1974).

When complaint showed on the complaint's face that the statute of limitations had run, and there was no further showing by amendment or affidavit that a tolling of the statute was possible, a motion to strike the barred claims was properly granted. Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).

Defense not clearly insufficient.

- In a wrongful death action against the Department of Transportation (DOT), the trial court erred in dismissing as insufficient DOT's defense based on the plaintiff's failure to file an expert affidavit in support of a claim involving a question of professional negligence by highway engineers. DOT v. Taunton, 217 Ga. App. 232, 457 S.E.2d 570 (1995).

In a wrongful death action against the Department of Transportation (DOT), a motion to strike was not the appropriate vehicle to dispose of DOT's "public duty" defense based on the doctrine established in City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993). DOT v. Taunton, 217 Ga. App. 232, 457 S.E.2d 570 (1995).

Failure to move to strike waived on appeal.

- On appeal from an order granting summary judgment to a store in a customer's slip and fall action, the appeals court declined to consider a store's argument that a customer's affidavit was invalid based on discrepancies in its execution as the store failed to move to strike the affidavit below, resulting in a waiver of this claim on appeal. Durham v. Patel, 282 Ga. App. 437, 638 S.E.2d 851 (2006).

Defense waived if not raised.

- By not raising the defense of lack of jurisdiction over the person or improper venue by motion or responsive pleading, the defendant waives any objection the defendant may have had. Smith v. Smith, 248 Ga. 268, 282 S.E.2d 324 (1981), overruled on other grounds, Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007).

Insurance company waived affirmative defense of insufficiency of service of process by failing to raise that defense in the answer to the amended complaint. McNeil v. McCollum, 276 Ga. App. 882, 625 S.E.2d 10 (2005).

Failure to raise defense to improper counterclaim did not act as waiver.

- Because a change of custody could not be asserted as a counterclaim, pursuant to O.C.G.A. § 19-9-23, the trial court erred in denying a father's motion to dismiss the counterclaim asserted by a mother, and the father's failure to raise the matter as a defense did not act as a waiver, as he filed no response to the counterclaim. Bailey v. Bailey, 283 Ga. App. 361, 641 S.E.2d 580 (2007).

Failure to state particular defense immaterial if action barred by statute of limitations.

- It was immaterial that the defendant did not raise the defense of insufficiency of process or service of process in the defendant's answers since motions for summary judgment and to dismiss were brought on the ground that the action was barred by the statute of limitation, and the defendant's right to dismissal on this ground was not waived. Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 448 S.E.2d 374 (1994).

Waiver of venue.

- Husband waived any objection to venue when the husband consented to venue in Cobb County in open court; therefore, the superior court did not err in denying the husband's motion to set aside the contempt judgment. Crutchfield v. Lawson, 294 Ga. 407, 754 S.E.2d 50 (2014).

In a mother's suit for a permanent protective order against her former husband under the Family Violence Act, O.C.G.A. § 19-13-1 et seq., the father waived his objection to venue under O.C.G.A. § 19-13-2 by not filing a responsive pleading or otherwise objecting; therefore, the trial court was not required to set aside the judgment under O.C.G.A. § 9-11-60(d)(1). McCarthy v. Ashment, 338 Ga. App. 858, 790 S.E.2d 651 (2016).

Default of nonresident does not waive defenses for resident co-defendant.

- Default of the nonresident defendant, which would otherwise constitute a waiver of various defenses, does not estop the nonresident defendant from asserting the fact of nonresidency in the event of judgment in favor of or dismissal of the resident defendant. Russell v. Hall, 165 Ga. App. 547, 301 S.E.2d 904 (1983).

No waiver of defenses.

- Trial court erred by granting a parent's complaint for modification of child custody and support and changing custody, which was filed in that parent's county of residence, as that county was not the jurisdiction wherein the issue of custody and support was originally litigated and the opposing parent never waived the challenge to the jurisdiction of the trial court via a pro se letter, which merely acknowledged receipt of the complaint; as a result, the judgment granting the change of custody was reversed and the case was remanded to the trial court with directions for the trial court to transfer the case to the trial court of the proper county. Hatch v. Hatch, 287 Ga. App. 832, 652 S.E.2d 874 (2007).

Non-duplication of payments is not an affirmative defense; thus, an insurer that was served as the plaintiff's uninsured motorist carrier in an action arising from a motor vehicle collision was not required to raise this issue in its answer or counterclaim, but was entitled to set off the amount it had already paid the plaintiffs from the amount of the judgment. Yates v. Dean, 244 Ga. App. 333, 535 S.E.2d 335 (2000).

Waiver of jurisdiction cannot prejudice third persons.

- Parties by consent, express or implied, cannot give jurisdiction to the court as to the person or the subject matter; jurisdiction may be waived, however, as to the person, so far as the rights of the parties themselves are concerned, but not so as to prejudice third persons. Gates v. Shaner, 208 Ga. 454, 67 S.E.2d 569 (1951) (decided under former Code 1933, § 81-503).

Defense of improper venue in a child custody case may be waived. Holt v. Leiter, 232 Ga. App. 376, 501 S.E.2d 879 (1998).

Waiver of defenses inapplicable absent service or waiver thereof.

- When there has been no service and no waiver of service, statutory provisions requiring such defense to be made or considered waived are not applicable. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972).

Amendment may not raise defenses under paragraph (h)(1).

- Under paragraph (h)(1) of this section, defenses of lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process may not be pled by amendment to an original pleading. Security Ins. Co. v. Gill, 141 Ga. App. 324, 233 S.E.2d 278 (1977).

Failure to exhaust administrative remedies.

- County's suit against a successor bank for the failure of a failed bank under jurisdiction of the Federal Deposit Insurance Corporation (FDIC) to pay on performance bonds later transferred to the successor bank was barred because the county had failed to exhaust the county's administrative remedies with the FDIC pursuant to 12 U.S.C. § 1821(d)(13)(D)(ii). Douglas County v. Hamilton State Bank, 340 Ga. App. 801, 798 S.E.2d 509 (2017).

Failure to raise issue.

- Defense of lack of jurisdiction over the person or improper venue may be waived by a failure to raise these issues by a motion to dismiss or in a responsive pleading, as originally filed. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900 (1983).

Defendant waives the defense of lack of personal jurisdiction due to improper venue when the defendant fails to raise the issue by motion or in the defendant's responsive pleadings. Bouldin v. Contran Corp., 167 Ga. App. 364, 306 S.E.2d 685 (1983).

Defenses preserved when filed in earlier pleading.

- Even though the defendants waited a year to file the defendants' motion to dismiss, the defendants did not waive defenses of insufficient service and expiration of the statute of limitation because those defenses were raised in the defendants' first defensive pleading. Heis v. Young, 226 Ga. App. 739, 487 S.E.2d 403 (1997).

Defense of insufficient process preserved.

- Although the record revealed that defendant was never served with process, the defendant preserved the defense of insufficiency of service of process by raising the defense in the defendant's objection to the plaintiff's petition. In re Ray, 248 Ga. App. 45, 545 S.E.2d 617 (2001).

Trial court did not err in granting the motion to dismiss for improper service as the towing company owner preserved the defense by specifically raising the defense in the owner's answer and did not waive the owner's procedural defenses by participating in substantial litigation on the merits, or by consenting to a pretrial order that did not list the procedural defense as a remaining issue; although the pretrial order stated that there were no motions or other matters pending for the trial court's consideration, the argument that "service of process upon defendant was not proper" was specifically listed as one of the owner's contentions and, thus, the defense was not waived. Carnes v. Reece, 271 Ga. App. 490, 610 S.E.2d 135 (2005).

In a family's lawsuit against a driver after a collision, the driver did not waive the driver's defense of failure of service by not raising the defense in a motion to dismiss the family's claim for attorney fees and costs. The defendant raised lack of service in the defendant's answer; thus, the defense of lack of service was properly before the trial court. Abimbola v. Pate, 291 Ga. App. 769, 662 S.E.2d 840 (2008).

When no question of jurisdiction is raised in the justice's court, it cannot be raised after verdict and appeal, either as to jurisdiction of the person or as to jurisdiction of amount, when lack of jurisdiction as to the amount does not affirmatively appear from the pleadings. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966) (decided under former Code 1933, § 81-503).

Waiver of personal jurisdiction in equity.

- Principle as to waiver of jurisdiction of the person applies not only to actions at law, but also to equity cases, including actions for specific performance. Black v. Milner Hotels, Inc., 194 Ga. 828, 22 S.E.2d 780 (1942) (decided under former Code 1933, § 81-503).

When a party filed objections to interrogatories and sought a ruling thereon, the party waived the matter of venue or jurisdiction of the person. Sorrells v. Cole, 111 Ga. App. 136, 141 S.E.2d 193 (1965) (decided under former Code 1933, § 81-503).

By being in default for failure to file a timely answer under O.C.G.A. § 9-11-55, the appellant waives the right under O.C.G.A. § 9-11-12 to contest the trial court's personal jurisdiction. Stout v. Signate Holding, Inc., 184 Ga. App. 154, 361 S.E.2d 36 (1987); Mine Chen v. Alexander Terry Assocs., 228 Ga. App. 345, 491 S.E.2d 834 (1997).

Failure to timely move for hearing.

- After a defendant pled insufficient service of process in the defendant's answer, but did not move for a hearing on the issue until after the appeal of the defendant's motion for summary judgment on the merits was ruled on adversely by the appellate court, neither the court nor the opponent was put on notice that this waivable preliminary jurisdictional defense would be insisted on. Nor did the appellate court have the issue before the court when the court labored over the case the first time. Thus, the defense was waived. Wheeler's, Inc. v. Wilson, 196 Ga. App. 622, 396 S.E.2d 790 (1990).

Appearance and pleading to merits.

- Objections to venue or jurisdiction of the person are waived by making a general appearance without specially reserving the matter in the answer or other defensive pleading. Gooch v. Appalachian Lumber Co., 123 Ga. App. 804, 182 S.E.2d 487 (1971).

When the defendant pleads to the merits without excepting to the jurisdiction of the court, the defendant waives any objection to the jurisdiction of the person. Moody v. Mendenhall, 238 Ga. 689, 234 S.E.2d 905 (1977).

Service under long arm statute.

- Foreign corporation did not waive the defense of lack of jurisdiction by not raising the defense in a responsive pleading or filing a motion to dismiss after being served under the long arm statute. Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 459 S.E.2d 187 (1995); B & D Fabricators v. D.H. Blair Investment Banking Corp., 220 Ga. App. 373, 469 S.E.2d 683 (1996).

Waiver from pre-trial order.

- Defenses of lack of personal jurisdiction, insufficient service of process, and improper venue may all be waived if the defenses are omitted, without objection, from the pre-trial order. Rice v. Cropsey, 203 Ga. App. 272, 416 S.E.2d 786, cert. denied, 203 Ga. App. 907, 416 S.E.2d 786 (1992).

Defendant in a promissory note case, by pleading to the merits and not raising the defense of lack of jurisdiction of the person, defective process, or improper venue, waived any objection the defendant may have had, and the court had personal jurisdiction and authority to enter a default judgment against the defendant. Kiplinger v. Oliver, 244 Ga. 527, 260 S.E.2d 904 (1979).

Jurisdictional defects are waived by defendant's appearance and pleading to the merits and the defendant's failure to attack the court's jurisdiction by a timely plea. Shaef Chem. Co. v. Cook, 106 Ga. App. 223, 126 S.E.2d 806 (1962) (decided under former Code 1933, § 81-503).

When the defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court and without excepting thereto, a defendant thereby admits the jurisdiction of the court; and after verdict and judgment, the question of jurisdiction cannot be raised in a motion to arrest. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936) (decided under former Code 1933, § 81-503).

When a defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court, and without excepting thereto, a defendant thereby admits the jurisdiction of the court, and cannot thereafter urge the jurisdictional question. Olshine v. Bryant, 55 Ga. App. 91, 189 S.E. 576 (1936) (decided under former Code 1933, § 81-503).

Trial court did not err when the court concluded that, pursuant to O.C.G.A. § 9-11-12(h)(1), a contractor waived objection to the sufficiency of service by a North Carolina deputy sheriff because the contractor appeared in court and filed a responsive pleading and motion, and the contractor failed to raise the issue of service by a North Carolina deputy sheriff in the contractor's first pleading or motion. Merry v. Robinson, 313 Ga. App. 321, 721 S.E.2d 567 (2011).

When attorney for wife exchanged correspondence with husband who sought divorce, and sent husband a card requesting entry of appearance, but since the wife did not submit any motions of any kind, file any pleadings, nor by any overt act participate in the litigation, such facts did not constitute a general appearance by the wife so as to waive the defect in service previously ruled by the court to exist. Baker v. Baker, 216 Ga. 800, 120 S.E.2d 308 (1961) (decided under former Code 1933, §§ 81-209 and 81-503).

Letter written by attorney to the court clerk, enclosing an appearance card, did not constitute such appearance as would waive jurisdiction, service, or absence of process under the Code. Baker v. Baker, 215 Ga. 688, 113 S.E.2d 113 (1960) (decided under former Code 1933, §§ 81-209, 81-211 and 81-503).

Having failed to raise defense of lack of jurisdiction over the person in a responsive pleading or by a motion made at or before filing responsive pleadings, such defense was waived. Hodges v. Lane, 124 Ga. App. 830, 186 S.E.2d 322 (1971); Gustin v. Roberts Mtg. & Inv. Corp., 162 Ga. App. 397, 291 S.E.2d 455 (1982).

Failure to question jurisdiction in pleadings.

- Filing of a demurrer and answer, without questioning the jurisdiction, is pleading to the merits within the rule that one pleading to the merits without excepting to the jurisdiction of the court waives any objection to jurisdiction of the person. Alexander v. Davis, 210 Ga. 292, 79 S.E.2d 810 (1954) (decided under former Code 1933, § 81-503).

Failure to raise defenses of insufficient service, lack of personal jurisdiction, and improper venue had to be raised before or at the time of pleading, failure to do so either in the answer or by motion filed before or with the answer constituted a waiver of the defenses. Amaechi v. Am. Honda Fin. Corp., 251 Ga. App. 591, 554 S.E.2d 536 (2001).

Filing of plea to merits subject to plea to jurisdiction not a waiver.

- Filing of a general demurrer or other plea to the merits, when filed subject to a plea to the jurisdiction or traverse of service, is not a waiver of the special plea. Home Fin. Co. v. Bank of La Fayette, 215 Ga. 533, 111 S.E.2d 359 (1959) (decided under former Code 1933, § 81-503).

When jurisdiction has been expressly excepted to by filing a plea at the first opportunity, the filing of a plea to the merits thereafter without stating that it is filed subject to the earlier plea does not have the effect of waiving the plea previously filed. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958) (decided under former Code 1933, § 81-503).

Failure to challenge jurisdiction and venue.

- When the defendants are served officially in a legal manner, defenses of lack of jurisdiction over the person and improper venue are waived if not presented to the trial court either by motion or responsive pleading prior to judgment. Padgett Masonry & Concrete Co. v. Peachtree Bank & Trust Co., 130 Ga. App. 886, 204 S.E.2d 807 (1974).

When the defendant had notice of an action and could have appeared to challenge personal jurisdiction and venue, but elected to do nothing, waiver resulted. Echols v. Dyches, 140 Ga. App. 191, 230 S.E.2d 315 (1976).

Defense of lack of venue must be made at earliest opportunity to plead or the defense is waived. Maalouf v. Knight, 237 Ga. App. 509, 515 S.E.2d 650 (1999).

One who, being properly served, wishes to rely on defense of lack of venue, must bring the defense to the attention of the court at a proper time, or the defense is waived. Goldstein v. Atlanta Coop. Credit Ass'n, 143 Ga. App. 890, 240 S.E.2d 155 (1977).

Defense based on forum selection clause waived.

- Tenant waived the tenant's defenses of personal jurisdiction and venue based on a forum selection clause in a contract by failing to raise those defenses in the tenant's answer and counterclaim to a suit brought by the individual owner of its landlord under a separate lease contract, and the trial court erred in dismissing the owner's suit. AIM DMC One, LLC v. Frank Gates Serv. Co., 325 Ga. App. 440, 754 S.E.2d 82 (2013).

Pleading to and defending on the merits when it was legally required, and at a time when the court had jurisdiction, did not constitute a waiver on the question of improper venue. Charles S. Martin Distrib. Co. v. Roberts, 111 Ga. App. 653, 143 S.E.2d 11 (1965) (decided under former Code 1933, § 81-503).

Party who, having been properly served, wishes to rely on the defense of lack of venue must bring the defense to the attention of the court prior to allowing the case to go to default judgment or the defense is waived. McDonough Contractors v. Martin & DeLoach Paving & Contracting Co., 183 Ga. App. 428, 359 S.E.2d 200 (1987).

Failure to raise insufficiency of process at pretrial conference waives issue.

- While the better practice in proceedings under O.C.G.A. § 9-11-16 (pretrial procedure) is to make specific reference as to the disposition of preliminary matters such as those raised pursuant to subsection (b) of O.C.G.A. § 9-11-12, the trial court does not abuse the court's discretion in concluding that the defendant who knows that the service of process upon the defendant is insufficient from the time the defendant's answer is filed but, nevertheless, purposefully neglects to pursue this issue at the pretrial conference, waives the insufficiency of service of process defense and thus consents to the jurisdiction of the trial court. Georgia Power Co. v. O'Bryant, 169 Ga. App. 491, 313 S.E.2d 709 (1983).

Failure to raise defect in service.

- Any defect in the service of process must be deemed waived when there is no indication in the record on appeal that the issue was raised in the trial court. Taylor v. Bentley, 166 Ga. App. 887, 305 S.E.2d 617 (1983).

Failure to give notice.

- Purchaser's abuse of litigation claim against the lender was properly dismissed under O.C.G.A. § 9-11-12(b)(6) because the purchaser failed to give written notice to the lender as was required by O.C.G.A. § 51-7-84(a). LaSonde v. Chase Mortg. Co., 259 Ga. App. 772, 577 S.E.2d 822 (2003).

Failure of defendant to raise question of venue, either by motion or by defense in the defendant's answer, amounts to waiver of venue. Goldstein v. Atlanta Coop. Credit Ass'n, 143 Ga. App. 890, 240 S.E.2d 155 (1977).

Trial court was without authority to grant the ex-husband's motion to transfer consolidated actions for contempt and modification of custody because the ex-husband waived any defense of improper venue when the ex-husband failed to raise the defense of improper venue either in an answer or a motion to dismiss. Hamner v. Turpen, 319 Ga. App. 619, 737 S.E.2d 721 (2013).

Plea to the merits as waiver of venue defense.

- All causes of action are ordinarily brought in the county of the residence of the defendant, but this provision of the law may be waived as by appearance and pleading to the merits without raising the point. Georgia Power Co. v. Woodall, 48 Ga. App. 85, 172 S.E. 76 (1933) (decided under former Code 1933, § 81-503).

Defense of improper venue is waived when defendants appear in court and plead to the merits, without challenging the jurisdiction or asserting the defense of improper venue. Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970).

When the defendant properly raised defense of improper venue at the appropriate time, and filed a motion within 30 days of judgment contesting that determination, the defendant's defense of lack of venue was not waived by the fact that the case was allowed to go to default judgment. Morgan v. Berry, 152 Ga. App. 623, 263 S.E.2d 508 (1979).

Appearance in an action by filing an answer, raising defense of insufficiency of service of process, and answering interrogatories does not constitute a waiver of defective service. Glass v. Byrom, 146 Ga. App. 1, 245 S.E.2d 345 (1978).

Filing of answer and counterclaim on same day as motion to dismiss.

- When written motion to dismiss for insufficiency of service of process was filed on the same day as an answer and counterclaim, the defendant did not waive alleged deficiency in service. Weems v. Weems, 225 Ga. 154, 166 S.E.2d 352 (1969).

Waiver of irregularities of service and process by plea to the merits.

- If a defendant appears and pleads to the merits, without pleading to the jurisdiction and without any protestation as to process or service, the defendant thereby admits the jurisdiction of the court and waives all irregularities of the process, or of the absence of process and the service thereof. Harper v. Allen, 41 Ga. App. 736, 154 S.E. 651 (1930) (decided under former Code 1933, §§ 81-209 and 81-503).

Appearance and pleading to the merits are a waiver of the absence of process. Edison Provision Co. v. Armour & Co., 51 Ga. App. 213, 179 S.E. 829 (1935) (decided under former Code 1933, § 81-209).

Appearance and pleading to the merits are a waiver of all irregularities of the process or of the absence of process and the service thereof. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936); Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953) (decided under former Code 1933, §§ 81-209 and 81-503).

Appearance and pleading, without a reservation by the pleader of the pleader's right to object later, are a waiver of all irregularities in the process. Nichols v. Acree, 112 Ga. App. 287, 145 S.E.2d 92 (1965) (decided under former Code 1933, § 81-209).

Defendant who appears and pleads to the merits of the action, without previous objection to the process, and without also objecting to the lack of jurisdiction of the court over the defendant's person, waives any objection which the defendant may have had to the issuance of the process, defects in the process, or the service, and even any objection based on the ground of total want of service. Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942) (decided under former Code 1933, § 81-209).

General appearance by answering a petition waives all irregularities in the service of process. Hagins v. Howell, 219 Ga. 276, 133 S.E.2d 8 (1963); Franklin County v. Payne, 115 Ga. App. 52, 153 S.E.2d 732 (1967) (decided under former Code 1933, § 81-209).

In filing a general demurrer without protesting omission of process, that defect is waived. Harrison v. Lovett, 198 Ga. 466, 31 S.E.2d 799 (1944) (decided under former Code 1933, § 81-209).

Filing an answer is pleading to the merits, and when done without an express reservation of the defendant's right to insist upon irregularities in the process, it amounts to a waiver of the irregularities. Stone v. Strange, 115 Ga. App. 56, 153 S.E.2d 587 (1967) (decided under former Code 1933, § 81-209).

Failure to raise defense of lack of service.

- Contention that insufficiency of service of process is apparent on the face of the record has no merit when such defense is waived by the defendant's failure to raise the defense by motion or in the defendant's original responsive pleadings. Christopher v. McGehee, 124 Ga. App. 310, 183 S.E.2d 624, aff'd, 228 Ga. 466, 186 S.E.2d 97 (1971).

Fact that an answer was filed by the defendant prior to service on individual partners furnished no basis to set aside the judgment as the defense of lack of service was waived by failure to assert the defense in the answer. Bolton Rd. Medical Ctr. v. Strother & Co., 140 Ga. App. 724, 231 S.E.2d 533 (1976).

When the defendant failed to include the defendant's contention of improper service in the defendant's motion to open the default or in the defendant's answer, the defendant waived that defense. A.G. Spanos Dev., Inc. v. Caras, 170 Ga. App. 243, 316 S.E.2d 793 (1984).

Defendant who has not been served with process waives any defect in service when the defendant fails to raise the defenses of lack of personal jurisdiction or lack of sufficiency of process by either motion or an answer; a debtor's letter to the court, in which the debtor identified the number of a collection case filed against the debtor by a creditor, denied owing the debt, and asserted that the creditor was indebted to the debtor sufficed as an answer, and the failure to raise personal-jurisdiction or service-of-process defenses in that answer waived the defenses. Ahmad v. Excell Petroleum, Inc., 276 Ga. App. 167, 623 S.E.2d 6 (2005).

Plea to jurisdiction without objection to service.

- When there is irregular or insufficient service or no service at all, but the defendant, not objecting to service, files a plea to the jurisdiction on grounds of nonresidence in the county, the object of service (opportunity to be heard) becomes accomplished of record in the case; hence, filing of such plea without objecting to service is waiver of service. Weddington v. Kumar, 149 Ga. App. 857, 256 S.E.2d 141 (1979).

Attack on proof of service only.

- When the defendant did not attack the validity of service or contend that no service was made, but only attacked the lack of proof thereof, the defendant waived service by appearing and pleading. Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976), overruled on other grounds, Montgomery v. USS Agri-Chem. Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

Time for filing answer runs from date proof of service filed.

- Trial court properly denied the plaintiffs' motion to default defendants because although the defendants' written acknowledgment of service was dated June 17, 2014, but not filed with the trial court until more than five business days later, such late filing did not cause the answer to be untimely under O.C.G.A. § 9-11-4(h) as the date of filing the proof of service triggered the defendants' 30-day period for filing an answer. Summers v. Wasdin, 337 Ga. App. 671, 788 S.E.2d 573 (2016).

Party's appearance before the trial court subsequent to the filing of the party's pleading in which the party contests the sufficiency of process does not amount to a waiver of that defense. Gaddis v. Dyer Lumber Co., 168 Ga. App. 334, 308 S.E.2d 852 (1983).

Plea to jurisdiction on ground of nonresidence as waiver of service.

- When there is irregular or insufficient service or no service at all, but the defendant, not objecting to the service or want of service, files a plea to the jurisdiction on the ground of the defendant's nonresidence in the county, the object of service (opportunity to be heard) becomes accomplished of record in the case, and the filing of such plea without objecting to the service or want of service is waiver of service. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124 (1938) (decided under former Code 1933, § 81-209).

Motion complaining of void process not waiver.

- When a want of jurisdiction appears on the face of the proceedings, an appearance by motion on the part of the person at whom such void process was directed, complaining of the want of the jurisdiction of the court, is not such an appearance as will result in the waiver of the process and service. Burch v. Crown Laundry, 78 Ga. App 421, 50 S.E.2d 768 (1948), aff'd, 205 Ga. 211, 53 S.E.2d 116 (1949) (decided under former Code 1933, § 81-501).

Plea to merits not waiver when want of service is pled.

- Appearance and pleading to the merits will waive service, if no objection is made to the want of service, but it does not have such effect when before or at the same time want of service is pled; both pleas may be filed together without destroying each other. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124 (1938) (decided under former Code 1933, § 81-209).

Pleading to and defending on the merits when legally required to do so, and at a time when the court had jurisdiction over a codefendant, did not constitute a waiver by the defendant on the question of improper venue. Routh v. St. Marys Airport Auth., 178 Ga. App. 191, 342 S.E.2d 502 (1986).

Defense of lack of service not waived.

- It was clear that the defendant preserved the issues of lack of service and insufficiency of service by pleading the defenses in accordance with O.C.G.A. § 9-11-12, and, by reasserting the defenses in the defendant's motion for summary judgment, the defendant documented the defendant's intent that the defendant did not waive the defenses, and this was recognized and adhered to by the trial court. Roberts v. Bienert, 183 Ga. App. 751, 360 S.E.2d 25 (1987).

Participation in discovery after defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service. Garrett v. Godby, 189 Ga. App. 183, 375 S.E.2d 103 (1988), cert. denied, 189 Ga. App. 912, 375 S.E.2d 103 (1989); Exum v. Melton, 244 Ga. App. 775, 536 S.E.2d 786 (2000).

No waiver of jurisdiction in divorce case.

- Divorce suits do not affect the formal parties to the suit alone but the entire social fabric as well; therefore, the provisions of former Code 1933, § 81-503 (see now O.C.G.A. § 15-1-2), which authorizes parties in certain cases to waive jurisdiction, does not apply to a divorce suit. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940) (decided under former Code 1933, § 81-503).

Waiver of improper venue and jurisdictional claims found in divorce case.

- Because one of the parties in a divorce trial did not raise a claim that jurisdiction and venue were improper until a motion for new trial, this claim was waived under O.C.G.A. § 9-11-12(h)(1)(B). Fine v. Fine, 281 Ga. 850, 642 S.E.2d 698 (2007).

Waiver of venue objection.

- Because the trial court erred in opening a default against lenders, the trial court also erred in transferring the case for lack of proper venue. Under O.C.G.A. § 9-11-12(h)(1), by failing to answer, the lenders waived any objection to venue. Flournoy v. Wells Fargo Bank, N.A., 289 Ga. App. 560, 657 S.E.2d 625 (2008).

Waiver of personal jurisdiction defense.

- Employer who appeared and participated in trial on the merits, after the trial court denied the employer's plea in abatement, submitted to the court's jurisdiction for trial on the merits and waived the employer's personal jurisdiction defense. Singleton v. State, 263 Ga. App. 653, 588 S.E.2d 757 (2003).

Waiver of defense of insufficient service.

- Trial court's order of forfeiture was upheld on appeal and, thus, was not subject to dismissal as: (1) the trial court was presented with testimony from witnesses other than the affiant, as well as sufficient other evidence, to support the order; (2) the alleged property owner waived any defense of insufficient service; and (3) an alternative code section did not afford the owner relief. McDowell v. State of Ga., 290 Ga. App. 538, 660 S.E.2d 24 (2008).

Failure to state claim may be raised at time of trial.

- It is certainly proper and preferable that the defense of failure to state a claim be filed along with or as a part of the answer, but subsection (h) of this section specifically permits such motion to be filed even at the time of trial. Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573, 174 S.E.2d 447 (1970).

Failure to state a claim cannot be raised by motion after judgment. Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973).

Treatment as motion for summary judgment.

- In an action filed by children to recover damages for injuries sustained by their parent in a fall in a nursing home facility, a motion to dismiss the action for failure to state a claim filed by the center that operated the facility was converted to a motion for summary judgment and, on appeal, was to be reviewed as such; the children, as nonmovants, submitted documentary evidence in response to the motion and, by doing so, in effect requested that the motion be converted into one for summary judgment and acquiesced in the trial court's decision not to give notice of the actual nature of the pending motion. Gaddis v. Chatsworth Health Care Ctr., Inc., 282 Ga. App. 615, 639 S.E.2d 399 (2006).

In a wrongful foreclosure action, the trial court erred in conducting a hearing on the defendants' motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings without giving the plaintiff prior notice as the trial court's notice of hearing stated that the court was conducting a status conference, and the notice made no mention of the defendants' motion to dismiss. Garner v. US Bank Nat'l Ass'n, 329 Ga. App. 86, 763 S.E.2d 748 (2014).

Failure to file defense on appeal to superior court from property evaluation.

- Default judgment will not lie for failure to file defensive pleadings in a de novo hearing before a jury on appeal in the superior court from a property evaluation. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).

Complaint failed to state claim.

- Trial court properly dismissed an inmate's petition for a writ of habeas corpus for failing to state a claim upon which relief could be granted based on a finding that such was prematurely filed in that no governor's warrant had been issued or served from the seeking state at the time the petition was filed and the inmate had only been arrested for Georgia offenses; moreover, to the extent that the inmate might have been seeking to challenge an arrest without a warrant pursuant to O.C.G.A. § 17-13-34, insufficient facts were pled which supported such a claim. Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007).

Failure to join indispensable party.

- Defense of failure to join an indispensable party is subject to defense of waiver under paragraph (h)(2) of O.C.G.A. § 9-11-12 and must be asserted before judgment or the defense is waived. Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982).

Failure to raise the defense of failure to join an indispensable party by motion or defensive pleading results in a waiver of the defense. Mathis v. Hammond, 268 Ga. 158, 486 S.E.2d 356 (1997).

Immunity defense not waived if pled in answer.

- In a claim of immunity grounded on a state policy enacted to encourage the rendering of emergency medical services, defendant's answer which pled a defense of failure to state a claim upon which relief could have been granted, and asserted the action was barred under the doctrine of sovereign immunity complied with O.C.G.A. § 9-11-12 and the defendant did not waive the right to the defenses. Ramsey v. City of Forest Park, 204 Ga. App. 98, 418 S.E.2d 432 (1992).

Pleading of failure to state claim sufficient notice of immunity defenses.

- Under notice pleading, an answer pleading a defense of failure to state a claim was minimally sufficient to give notice of substantive immunity defenses under either O.C.G.A. § 31-11-8 or O.C.G.A. § 36-33-3. Ramsey v. City of Forest Park, 204 Ga. App. 98, 418 S.E.2d 432 (1992).

Case properly dismissed.

- Purchaser's tortuous interference with a contract claim was properly dismissed pursuant to O.C.G.A. § 9-11-12(b)(6) because the purchaser could not maintain such a claim against the lender because the lender had a direct interest in the contract. Additionally, the purchaser's abuse of litigation claim was properly dismissed under § 9-11-12(b)(6) because the lender's dispossessory claim against the purchaser and seller, the subject of the abuse of litigation claim, succeeded, which was a complete defense under O.C.G.A. § 51-7-82(c). LaSonde v. Chase Mortg. Co., 259 Ga. App. 772, 577 S.E.2d 822 (2003).

Case improperly dismissed.

- Because a neighbor adequately set forth a cause of action for ejection in their amended complaint, specifically alleging that during the elevation of their own property, the adjacent landowner and its transferee appropriated the neighbor's property to the extent that they placed the fill dirt presently being used as lateral support over the common boundary and onto the neighbor's property, the trial court erred in dismissing the complaint. MVP Inv. Co. v. North Fulton Express Oil, LLC, 282 Ga. App. 512, 639 S.E.2d 533 (2006).

Jurisdiction of subject matter not waivable.

- Rule that a plea to the jurisdiction may be filed on appeal applies only to pleas to the jurisdiction of the subject matter, which can never be waived. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966) (decided under former Code 1933, § 81-503).

Dismissal for lack of subject matter jurisdiction.

- Paragraph (h)(3) of this section deals solely with the duty of the trial court to dismiss an action when it appears that subject matter jurisdiction, a nonwaivable defect which would render any judgment in the action void, is absent. McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977), overruled on other grounds, Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

Dismissal not authorized.

- When an original creditor acquired an existing debt obligation of guarantor and the substantive rights in that indebtedness were then assigned to a subsequent creditor through the sale of the original creditor's stock, there was no need for equitable reformation of any writing, and so the trial court did not err by refusing to dismiss the contract action as being beyond the subject matter jurisdiction of the county court. Davis v. Concord Com. Corp., 209 Ga. App. 595, 434 S.E.2d 571 (1993).

Paragraph (h)(3) does not authorize a judge to enforce, over the objection of the defendant, a waivable defense held by that defendant. McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977), overruled on other grounds, Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

Effect of hospital governmental entity's delayed non-waiver of service.

- Patients exercised due diligence (under a laches-type of test) to serve a hospital after the hospital informed the patients, after the statute of limitations expired, that the hospital was a governmental entity that, under O.C.G.A. § 9-11-4(d), could not accept the patients' request to waive service of process. Therefore, the patient's suit, filed before the statute of limitations expired, related back under laches and O.C.G.A. § 9-11-12(b) and the statute of limitations did not bar the dismissed claims against the hospital and, thus, the trial court abused the court's discretion in dismissing the action. Carver v. Tift County Hosp. Auth., 268 Ga. App. 153, 601 S.E.2d 475 (2004).

Am. Jur. 2d.

- 4 Am. Jur. 2d, Appearance, § 1. 20 Am. Jur. 2d, Counterclaim, Recoupment, and Setoff, §§ 30 et seq., 103 et seq. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 53, 55. 51 Am. Jur. 2d, Limitation of Actions, § 377 et seq. 61A Am. Jur. 2d, Pleading, § 211 et seq. 73 Am. Jur. 2d, Summary Judgment, § 12 et seq.

8B Am. Jur. Pleading and Practice Forms, Desertion and Nonsupport, § 33. 8B Am. Jur. Pleading and Practice Forms, Dismissal, Discontinuance, and Nonsuit, § 1. 19B Am. Jur. Pleading and Practice Forms, Pleading, §§ 216, 273, 422. 20A Am. Jur. Pleading and Practice Forms, Process, § 149.

C.J.S.

- 35A C.J.S., Federal Civil Procedure, §§ 168, 212, 214, 216, 218, 232, 289, 290, 294 et seq., 299, 301, 311, 337, 341 et seq., 377 et seq., 387, 393 et seq., 445 et seq., 448, 455, 457, 459, 460, 461. 35B C.J.S., Federal Civil Procedure, §§ 803, 809, 812, 818, 824, 827 et seq., 834 et seq., 846, 862, 863, 865, 867, 870, 875, 879 et seq., 1213, 1223. 71 C.J.S., Pleading, §§ 98 et seq., 111, 132 et seq., 123, 137, 432 et seq., 435 et seq., 461 et seq., 486 et seq.

ALR.

- Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.

Joinder, in one action at law, of persons not jointly liable, one or the other of whom is liable to the plaintiff, 41 A.L.R. 1223.

Necessity and sufficiency of verification of specifications of objections to discharge in bankruptcy, 47 A.L.R. 640.

Attack by defendant upon attachment or garnishment as an appearance subjecting him personally to jurisdiction, 55 A.L.R. 1121; 129 A.L.R. 1240.

Constitutionality of statute or rule of court providing for summary judgment unless affidavit of merits is filed, 69 A.L.R. 1031; 120 A.L.R. 1400.

May unconstitutionality of statute be raised by demurrer to pleading, 71 A.L.R. 1194.

Bar of statute of nonclaim of decedent's domicile as affecting assertion of claim elsewhere, 72 A.L.R. 1030.

Action for abuse of process, 80 A.L.R. 580.

May or must claim for damages from wrongful seizure of property be interposed in action or proceeding in which such seizure is made, 85 A.L.R. 644.

May question as to qualification or competency of witness be raised by or upon motion for nonsuit or for directed verdict, absent objection on that ground when testimony was given, 93 A.L.R. 788.

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.

Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.

Asking relief in addition to vacation of service of process as waiver of special appearance or of right to rely upon lack of jurisdiction, 111 A.L.R. 925.

Consent of parties to consideration of matters extrinsic to pleading demurred to, 137 A.L.R. 483.

Power to open or modify "consent" judgment, 139 A.L.R. 421.

Right of defendant in civil action to change of venue upon motion made after time specified by statute or rule in that regard, as affected by fact that codefendant had made such a motion within the prescribed period, 141 A.L.R. 1177.

Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.

Right of one defendant to demur to complaint because of failure to state a cause of action against codefendant, or to complain of overruling of demurrer interposed by latter, 145 A.L.R. 676.

Domicile or residence of person in the armed forces, 158 A.L.R. 1474.

Pleading particular cause of injury as waiver of right to rely on res ipsa loquitur, 160 A.L.R. 1450; 2 A.L.R.3d 1335.

Right to ruling on objection to jurisdiction over person before hearing or trial on merits, 161 A.L.R. 295.

Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496.

Demurring to complaint or petition in intervention as waiver of right to stand upon motion to strike, 163 A.L.R. 917.

Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433.

Dissolved corporation as an indispensable party to a stockholder's derivative action, 172 A.L.R. 691.

Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.

Appealability of order overruling motion for judgment on pleadings, 14 A.L.R.2d 460.

Immunity of nonresident defendant in criminal case from service of process, 20 A.L.R.2d 163.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Objection before judgment to jurisdiction of court over subject matter as constituting general appearance, 25 A.L.R.2d 833.

Motion to vacate judgment or order as constituting general appearance, 31 A.L.R.2d 262.

Court's power, on motion for judgment on the pleadings, to enter judgment against movant, 48 A.L.R.2d 1175.

Pleading or raising defense of privilege in defamation action, 51 A.L.R.2d 552.

Appealability of order sustaining demurrer, or its equivalent, to complaint on ground of misjoinder or nonjoinder of parties or misjoinder of causes of action, 56 A.L.R.2d 1238.

Necessity and manner of pleading assumption of risk as a defense, 59 A.L.R.2d 239.

Pleading imputed negligence as defense, 59 A.L.R.2d 273.

Proper procedure and course of action by trial court, where both parties move for judgment on the pleadings, 59 A.L.R.2d 494.

Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300.

Litigant's participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 62 A.L.R.2d 937.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278.

Proper forum and right to maintain action for airplane accident causing death over or in high seas, 66 A.L.R.2d 1002.

Necessity and sufficiency of renewal of objection to, or offer of, evidence admitted or excluded conditionally, 88 A.L.R.2d 12.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of contract action involving foreign elements, 90 A.L.R.2d 1109.

Prohibition as appropriate remedy to restrain civil action for lack of venue, 93 A.L.R.2d 882.

Pleading of election remedies, 99 A.L.R.2d 1315.

Modern trends as to pleading a particular cause of injury or act of negligence as waiving or barring the right to rely on res ipsa loquitur, 2 A.L.R.3d 1335.

Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Plea of guilty as waiver of claim of unlawful search and seizure, 20 A.L.R.3d 724.

Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113.

Permitting documents or tape recordings containing confessions of guilt or incriminating admissions to be taken into jury room in criminal case, 37 A.L.R.3d 238.

Waiver of, by failure to promptly raise, objection to splitting cause of action, 40 A.L.R.3d 108.

Pleading and proof of law of foreign country, 75 A.L.R.3d 177.

Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service: state cases, 77 A.L.R.3d 841.

Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.

Necessity of oral argument on motion for summary judgment or judgment on pleadings in federal court, 105 A.L.R. Fed. 755.