Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 81-101, 81-105, and Ch. 3, T. 81 are included in the annotations for this Code section.

Bills in equity are unknown to Georgia practice since the Uniform Procedure Act of 1887, Ga. L. 1887, p. 64. Sengstacke v. American Missionary Ass'n, 196 Ga. 539, 26 S.E.2d 891 (1943) (decided under former Code 1933, § 81-101).

Judicial notice.

- Pleadings contradicting anything which must be judicially noticed are nugatory. South Am. Managers, Inc. v. Reeves, 220 Ga. 493, 140 S.E.2d 201 (1965).

Maxim res ipsa loquitur has no application to pleadings; it is only a rule of evidence. Chapman v. Phillips, 112 Ga. App. 434, 145 S.E.2d 663 (1965) (decided under former Code 1933, § 81-101).

Constitutionality of questions.

- In order to raise a question as to the constitutionality of a law, at least three things must be shown: (1) statute or particular part or parts thereof being challenged must be stated or pointed out with fair precision; (2) provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or designated part thereof, violates such constitutional provision. DeKalb County v. Post Properties, Inc., 245 Ga. 214, 263 S.E.2d 905 (1980).

Construction with other statutes.

- In an action for damages, O.C.G.A. § 9-11-8(a)(2)(B), part of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, requires a written demand in the complaint for the damages requested; thus, if a court were to interpret O.C.G.A. § 44-14-3(c) as permitting a demand for liquidated damages to be made in the complaint, the section would have no real meaning because the Civil Practice Act already imposes such a requirement. Accordingly, if § 44-14-3(c) is to serve any real purpose, it must be construed as a requirement that a grantor make a written demand on the grantee for the liquidated damages as a condition precedent to creating the liability that serves as the basis for a lawsuit. SunTrust Bank v. Hightower, 291 Ga. App. 62, 660 S.E.2d 745 (2008).

O.C.G.A.

§ 9-10-112 is not "faulty" for conflicting with O.C.G.A. § 9-11-8(b). - O.C.G.A. § 9-10-112, as the more specific statute, prevails over § 9-11-8(b). Baylis v. Daryani, 294 Ga. App. 729, 669 S.E.2d 674 (2008).

Municipal ordinance need not be specifically pled.

- There is no requirement that municipal ordinances be specifically pled as a prerequisite to the ordinance's admission in evidence. Morgan v. Reeves, 226 Ga. 697, 177 S.E.2d 68 (1970).

Party to action is bound by material allegations in the party's pleadings, so long as they remain in the party's pleadings, and the opposite party may rely upon an admission as having established the fact alleged in the opposing party's favor, no proof thereof being needed. Martin v. Pierce, 140 Ga. App. 897, 232 S.E.2d 170 (1977).

Civil Practice Act, O.C.G.A. Ch. 11, T. 9, which permits alternative pleadings does not change the rule of evidence that a party is bound by the party's judicial admissions. Ditch v. Royal Indem. Co., 205 Ga. App. 478, 422 S.E.2d 868, cert. denied, 205 Ga. App. 899, 422 S.E.2d 868 (1992).

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 the 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).

No waiver of sovereign immunity.

- O.C.G.A. § 9-11-8 does not constitute a statutory waiver of immunity for suits in negligence against the state. James v. Richmond County Health Dep't, 168 Ga. App. 416, 309 S.E.2d 411 (1983).

Solemn admissions in judicio as made in pleadings are conclusive against the party making the admissions, unless formally withdrawn from the pleadings, and a party to a suit will not be allowed to disprove an admission made in the party's pleadings, unless it has been withdrawn from the record; the opposite party may rely upon the admission as having established the fact alleged in the opposing party's favor, and no proof thereof is needed. Puppy Love Kennel, Inc. v. Norton, 158 Ga. App. 69, 279 S.E.2d 312 (1981).

Admissions in judicio proper.

- Note and guaranty became admissions in judicio and plaintiffs were entitled to rely upon admissions contained in the answer that the copies were identified and authentic and the admittance by the trial court was proper. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998).

Trial court may hear attack on judgment.

- When the trial court orders entry of a settlement amount and dismisses a case with prejudice and the plaintiff files a motion for new trial and a motion to set aside, contending that the plaintiff did not agree to the settlement and that the plaintiff's attorney was without authority to compromise, the trial court does not err in hearing this attack on the judgment; the matter is still in the breast of the trial court and the proceedings toll the time for appeal. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).

No default judgment for 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).

No judgment on pleadings based on answer only.

- 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 the contractor's first affirmative defense that the contractor 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).

Cited in Campbell v. Brock, 224 Ga. 16, 159 S.E.2d 409 (1968); Chastain Fin. Co. v. Sherwood, 117 Ga. App. 556, 161 S.E.2d 401 (1968); Seaboard Air Line R.R. v. Hawkins, 117 Ga. App. 797, 161 S.E.2d 886 (1968); Bazemore v. Burnet, 117 Ga. App. 849, 161 S.E.2d 924 (1968); Hawes v. Central of Ga. Ry., 117 Ga. App. 771, 162 S.E.2d 14 (1968); Hirsch's v. Adams, 117 Ga. App. 847, 162 S.E.2d 243 (1968); Ryder v. Schreeder, 224 Ga. 382, 162 S.E.2d 375 (1968); B-W Acceptance Corp. v. Callaway, 224 Ga. 367, 162 S.E.2d 430 (1968); Consolidated Credit Corp. v. Short, 224 Ga. 369, 162 S.E.2d 435 (1968); Clark v. Piedmont Hosp., 117 Ga. App. 875, 162 S.E.2d 468 (1968); D.G. Mach. & Gage Co. v. Hardy, 118 Ga. App. 45, 162 S.E.2d 852 (1968); Frink v. Derst Baking Co., 224 Ga. 642, 163 S.E.2d 712 (1968); Keith v. Byram, 118 Ga. App. 364, 163 S.E.2d 753 (1968); Bacon v. Winter, 118 Ga. App. 358, 163 S.E.2d 890 (1968); Beck v. Johnston, 118 Ga. App. 541, 164 S.E.2d 342 (1968); City Dodge, Inc. v. Atkins, 118 Ga. App. 676, 164 S.E.2d 864 (1968); Travelers Ins. Co. v. Johnson, 118 Ga. App. 616, 164 S.E.2d 926 (1968); Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968); G.E.C. Corp. v. Levy, 119 Ga. App. 59, 166 S.E.2d 376 (1969); Apollo Homes, Inc. v. Knowles, 119 Ga. App. 239, 166 S.E.2d 644 (1969); Goette v. Darvoe, 119 Ga. App. 320, 166 S.E.2d 912 (1969); Greene v. McIntyre, 119 Ga. App. 296, 167 S.E.2d 203 (1969); McKinnon v. Neugent, 225 Ga. 215, 167 S.E.2d 593 (1969); Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Jones v. Van Vleck, 119 Ga. App. 846, 169 S.E.2d 178 (1969); Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969); Anthony v. Anthony, 120 Ga. App. 261, 170 S.E.2d 273 (1969); Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969); Holland Furnace Co. v. Willis, 120 Ga. App. 733, 172 S.E.2d 149 (1969); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970); Reynolds v. Wilson, 121 Ga. App. 153, 173 S.E.2d 256 (1970); Hogan v. Maxey, 121 Ga. App. 490, 174 S.E.2d 208 (1970); Feldman v. Whipkey's Drug Shop, 121 Ga. App. 580, 174 S.E.2d 474 (1970); Shepard v. Morrison, 121 Ga. App. 762, 175 S.E.2d 407 (1970); J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847 (1970); Morgan v. White, 121 Ga. App. 794, 175 S.E.2d 878 (1970); Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970); Townsend v. Lewis, 122 Ga. App. 135, 176 S.E.2d 457 (1970); Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970); Harper v. Ballensinger, 226 Ga. 828, 177 S.E.2d 693 (1970); Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970); Cook v. Seaboard Coast Line R.R., 311 F. Supp. 584 (S.D. Ga. 1970); Frazier v. Rainey, 227 Ga. 350, 180 S.E.2d 725 (1971); Mathews v. McConnell, 124 Ga. App. 519, 184 S.E.2d 491 (1971); Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539 (1971); Stalvey v. Osceola Indus., Inc., 124 Ga. App. 708, 185 S.E.2d 629 (1971); Crowder v. Department of State Parks, 228 Ga. 436, 185 S.E.2d 908 (1971); Norfolk & Dedham Mut. Fire Ins. Co. v. Jones, 124 Ga. App. 761, 186 S.E.2d 119 (1971); Candler v. Clover Realty Co., 125 Ga. App. 278, 187 S.E.2d 318 (1972); Roesler v. Etheridge, 125 Ga. App. 358, 187 S.E.2d 572 (1972); Payton v. Johnson, 228 Ga. 810, 188 S.E.2d 504 (1972); Freezamatic Corp. v. Brigadier Indus. Corp., 125 Ga. App. 767, 189 S.E.2d 108 (1972); Gamble v. Reeves Transp. Co., 126 Ga. App. 161, 190 S.E.2d 95 (1972); Myers v. Clark, 126 Ga. App. 154, 190 S.E.2d 134 (1972); Young v. Bozeman, 229 Ga. 195, 190 S.E.2d 523 (1972); Miller v. Columbus, 229 Ga. 234, 190 S.E.2d 535 (1972); Woods v. Canady, 126 Ga. App. 389, 190 S.E.2d 920 (1972); Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga. App. 436, 191 S.E.2d 95 (1972); McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972); General Fin. Corp. v. Davis, 126 Ga. App. 821, 191 S.E.2d 865 (1972); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 192 S.E.2d 513 (1973); Wesley Chapel Bldrs., Inc. v. Sopiro, 127 Ga. App. 383, 193 S.E.2d 638 (1972); City of Lawrenceville v. Humphries, 229 Ga. 724, 194 S.E.2d 84 (1972); Culverhouse v. Atlanta Ass'n for Convalescent Aged Persons, 127 Ga. App. 574, 194 S.E.2d 299 (1972); Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972); Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972); West v. Forehand, 128 Ga. App. 124, 195 S.E.2d 777 (1973); Roberts v. Harrell, 230 Ga. 454, 197 S.E.2d 704 (1973); Owens v. Cobb County, 230 Ga. 707, 198 S.E.2d 846 (1973); Murray Chevrolet Co. v. Godwin, 129 Ga. App. 153, 199 S.E.2d 117 (1973); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); Management Search, Inc. v. Kinard, 231 Ga. 26, 119 S.E.2d 899 (1973); Camp v. Fidelity Bankers Life Ins. Co., 129 Ga. App. 590, 200 S.E.2d 332 (1973); Frey v. Friendly Motors, Inc., 129 Ga. App. 636, 200 S.E.2d 467 (1973); Giant Peanut Co. v. Carolina Chems., Inc., 129 Ga. App. 718, 200 S.E.2d 918 (1973); Snooks v. Factory Square, Inc., 129 Ga. App. 772, 201 S.E.2d 168 (1973); Searcy v. Godwin, 129 Ga. App. 827, 201 S.E.2d 670 (1973); Mathews v. Greiner, 130 Ga. App. 817, 204 S.E.2d 749 (1974); Neal v. McCall, 131 Ga. App. 347, 206 S.E.2d 114 (1974); Baldwin v. Ariail, 232 Ga. 376, 207 S.E.2d 17 (1974); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Yeargin v. Burleson, 132 Ga. App. 652, 209 S.E.2d 99 (1974); Bailey v. Bruce, 132 Ga. App. 782, 209 S.E.2d 135 (1974); Robinson Explosives, Inc. v. Dalon Contracting Co., 132 Ga. App. 849, 209 S.E.2d 264 (1974); McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974); Bouldin v. Baum, 134 Ga. App. 484, 214 S.E.2d 734 (1975); Yancey v. Harris, 234 Ga. 320, 216 S.E.2d 83 (1975); Chupp v. Henderson, 134 Ga. App. 808, 216 S.E.2d 366 (1975); Dillingham v. Doctors Clinic, 135 Ga. App. 736, 219 S.E.2d 2 (1975); Filsoof v. West, 235 Ga. 818, 221 S.E.2d 811 (1976); Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168 (1976); Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976); Phillips v. Hertz Com. Leasing Corp., 138 Ga. App. 441, 226 S.E.2d 287 (1976); Ellington v. Tolar Constr. Co., 237 Ga. 235, 277 S.E.2d 336 (1976); Lunsford Co. v. Klingenberg, 138 Ga. App. 791, 227 S.E.2d 507 (1976); Thomas v. Firestone Tire & Rubber Co., 139 Ga. App. 40, 227 S.E.2d 870 (1976); Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976); Skipper v. Collins, 139 Ga. App. 826, 229 S.E.2d 790 (1976); Shannondoah, Inc. v. Smith, 140 Ga. App. 200, 230 S.E.2d 351 (1976); Campbell v. Jim Walter Homes, Inc., 140 Ga. App. 435, 231 S.E.2d 450 (1976); Easley v. Easley, 238 Ga. 180, 231 S.E.2d 763 (1977); New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977); Phillips v. Abel, 141 Ga. App. 291, 233 S.E.2d 384 (1977); Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666 (1977); Hemphill v. Congoleum Corp., 142 Ga. App. 83, 234 S.E.2d 859 (1977); Drewry v. Robinson, 142 Ga. App. 432, 236 S.E.2d 108 (1977); Lowry v. Lomire, 143 Ga. App. 479, 238 S.E.2d 594 (1977); Holt v. Rickett, 143 Ga. App. 337, 238 S.E.2d 706 (1977); Lord v. Smith, 143 Ga. App. 378, 238 S.E.2d 731 (1977); North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977); Eaton v. Weatherby, 239 Ga. 795, 239 S.E.2d 8 (1977); Kirk v. First Ga. Inv. Corp., 239 Ga. 171, 236 S.E.2d 254 (1977); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561, 239 S.E.2d 217 (1977); McElroy v. Wilson, 143 Ga. App. 893, 240 S.E.2d 155 (1977); Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 241 S.E.2d 256 (1977); Boxwood Corp. v. Berry, 144 Ga. App. 351, 241 S.E.2d 297 (1977); Crider v. First Nat'l Bank, 144 Ga. App. 536, 241 S.E.2d 638 (1978); Retail Union Health & Welfare Fund v. Seabrum, 240 Ga. 695, 242 S.E.2d 18 (1978); Holzman v. National Bank, 144 Ga. App. 710, 242 S.E.2d 299 (1978); Hall v. First Nat'l Bank, 145 Ga. App. 267, 243 S.E.2d 569 (1978)

Gray v. Finance Am. Corp., 145 Ga. App. 253, 243 S.E.2d 671 (1978); Peacock v. Nat'l Bank & Trust Co., 241 Ga. 280, 244 S.E.2d 816 (1978); Whitby v. Maloy, 145 Ga. App. 785, 245 S.E.2d 5 (1978); Brown v. National Van Lines, 145 Ga. App. 824, 245 S.E.2d 27 (1978); Azar v. Accurate Constr. Co., 146 Ga. App. 326, 246 S.E.2d 381 (1978); Dixie Home Bldrs., Inc. v. Waldrip, 146 Ga. App. 464, 246 S.E.2d 471 (1978); Whiteside v. Douglas County Bank, 146 Ga. App. 888, 247 S.E.2d 558 (1978); In re Boswell, 242 Ga. 313, 249 S.E.2d 13 (1978); McCraw v. Watkins, 242 Ga. 452, 249 S.E.2d 202 (1978); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978); Clark Equip. Credit Corp. v. Refrigerated Transp. Co., 148 Ga. App. 405, 251 S.E.2d 321 (1978); Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978); PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 257 S.E.2d 285 (1979); Dixie Fire Servs., Inc. v. Pappas, 151 Ga. App. 760, 261 S.E.2d 653 (1979); Cooper v. Mason, 151 Ga. App. 793, 261 S.E.2d 738 (1979); Morgan v. Berry, 152 Ga. App. 623, 263 S.E.2d 508 (1979); Halpern Properties, Inc. v. Newton County Bd. of Equalization, 245 Ga. 728, 267 S.E.2d 26 (1980); Fosgate v. American Mut. Liab. Ins. Co., 154 Ga. App. 510, 268 S.E.2d 780 (1980); First Bank & Trust Co. v. Insurance Serv. Ass'n, 154 Ga. App. 697, 269 S.E.2d 527 (1980); GMAC v. Yates Motor Co., 159 Ga. App. 215, 283 S.E.2d 74 (1981); Tyson v. Henson, 159 Ga. App. 684, 285 S.E.2d 27 (1981); First Bank v. Dollar, 159 Ga. App. 815, 285 S.E.2d 203 (1981); DeLoach v. Floyd, 160 Ga. App. 728, 288 S.E.2d 65 (1981); United States Life Credit Corp. v. Johnson, 248 Ga. 852, 287 S.E.2d 1 (1982); Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982); Coffeen v. Doster, 161 Ga. App. 529, 288 S.E.2d 327 (1982); Larry's Mobile Homes, Inc. v. Robins Fed. Credit Union, 161 Ga. App. 822, 288 S.E.2d 800 (1982); United States Life Credit Corp. v. Johnson, 161 Ga. App. 864, 290 S.E.2d 280 (1982); Bettis v. City of Atlanta, 163 Ga. App. 121, 293 S.E.2d 58 (1982); Thomas v. Ronald A. Edwards Constr. Co., 163 Ga. App. 202, 293 S.E.2d 383 (1982); Cleveland v. American Motorists Ins. Co., 163 Ga. App. 748, 295 S.E.2d 190 (1982); Marchman & Marchman, Inc. v. City of Atlanta, 250 Ga. 64, 295 S.E.2d 311 (1982); Cato Oil & Grease Co. v. Lewis, 250 Ga. 24, 295 S.E.2d 527 (1982); Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982); Shepherd v. Shepherd, 164 Ga. App. 185, 296 S.E.2d 151 (1982); Citizens Bank v. Ansley, 164 Ga. App. 437, 296 S.E.2d 370 (1982); Keese v. Brown, 250 Ga. 383, 297 S.E.2d 487 (1982); Ingle v. Swish Mfg. S.E., Inc., 164 Ga. App. 469, 297 S.E.2d 506 (1982); Johnson v. G.A.B. Bus. Servs., Inc., 165 Ga. App. 284, 300 S.E.2d 325 (1983); Farlow v. Vigilant Ins. Co., 165 Ga. App. 696, 302 S.E.2d 578 (1983); Banks v. Borg-Warner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54 (1983); Iannicelli v. Iannicelli, 169 Ga. App. 155, 311 S.E.2d 850 (1983); Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 314 S.E.2d 903 (1984); London v. Bank of S., 170 Ga. App. 44, 315 S.E.2d 924 (1984); Potts v. State, 170 Ga. App. 216, 316 S.E.2d 587 (1984); Summer-Minter & Assocs. v. Phillips, 171 Ga. App. 528, 320 S.E.2d 376 (1984); Davidson v. American Fitness Ctrs. Inc., 171 Ga. App. 619, 320 S.E.2d 824 (1984); McKay v. Nally, 173 Ga. App. 372, 326 S.E.2d 560 (1985); Craft v. Hospital Auth., 173 Ga. App. 444, 326 S.E.2d 590 (1985); Plank v. Bourdon, 173 Ga. App. 391, 326 S.E.2d 571 (1985); Desai v. Safeco Ins. Co. of Am., 173 Ga. App. 815, 328 S.E.2d 376 (1985); Wolfes v. Terrell, 173 Ga. App. 835, 328 S.E.2d 569 (1985); Olympic Dev. Group, Inc. v. American Druggists' Ins. Co., 175 Ga. App. 425, 333 S.E.2d 622 (1985); Macon ChryslerPlymouth v. Sentell, 179 Ga. App. 754, 347 S.E.2d 639 (1986); Grier v. Skinner's Furn. Store of Newnan, Inc., 180 Ga. App. 607, 349 S.E.2d 826 (1986); Mr. B's Oil Co. v. Register, 181 Ga. App. 166, 351 S.E.2d 533 (1986); Maryland Cas. Ins. Co. v. Welchel, 181 Ga. App. 224, 351 S.E.2d 645 (1986); Howell v. Tidwell, 256 Ga. 647, 352 S.E.2d 372 (1987); Munna v. Lewis, 181 Ga. App. 860, 354 S.E.2d 181 (1987); Acker v. Veal, 183 Ga. App. 297, 359 S.E.2d 7 (1987); ARA Transp. v. Barnes, 183 Ga. App. 424, 359 S.E.2d 157 (1987); Roberts v. Bienert, 183 Ga. App. 751, 360 S.E.2d 25 (1987); 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); Smith v. Doe, 189 Ga. App. 264, 375 S.E.2d 477 (1988); McCollum v. Doe, 190 Ga. App. 444, 379 S.E.2d 233 (1989); Wilson v. Wickes-Homecrafters, Inc., 191 Ga. App. 474, 382 S.E.2d 194 (1989); Sims v. Holtzclaw, 259 Ga. 537, 384 S.E.2d 656 (1989); Wright v. Food Giant, Inc., 195 Ga. App. 677, 394 S.E.2d 610 (1990); Cassidy v. Wilson, 196 Ga. App. 6, 395 S.E.2d 291 (1990); Powell v. Thomas, 199 Ga. App. 553, 405 S.E.2d 553 (1991); Brinson v. First Am. Bank, 200 Ga. App. 552, 409 S.E.2d 50 (1991); Wade v. Polytech. Indus., Inc., 202 Ga. App. 18, 413 S.E.2d 468 (1991); Haire v. Suburban Auto Body, Inc., 204 Ga. App. 16, 418 S.E.2d 163 (1992); Rogers v. Carmike Cinemas, Inc., 211 Ga. App. 427, 439 S.E.2d 663 (1994); Burnette v. McCarter, 211 Ga. App. 781, 440 S.E.2d 488 (1994); Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545, 445 S.E.2d 535 (1994); Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995); Manning v. Robertson, 223 Ga. App. 139, 476 S.E.2d 889 (1996); Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 477 S.E.2d 141 (1996); Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997); M & M Mobile Homes of Ga., Inc. v. Haralson, 233 Ga. App. 749, 505 S.E.2d 249 (1998); Cotton, Inc. v. Phil-Dan Trucking, Inc., 270 Ga. 95, 507 S.E.2d 730 (1998); Shealy v. Unified Gov't of Athens Clarke County, 244 Ga. App. 853, 537 S.E.2d 105 (2000); C & F Servs. v. First S. Bank, 258 Ga. App. 71, 573 S.E.2d 102 (2002); Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006); Dudley v. Wachovia Bank, N.A., 290 Ga. App. 220, 659 S.E.2d 658 (2008); Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008); Am. Teleconferencing Servs. v. Network Billing Sys., LLC, 293 Ga. App. 772, 668 S.E.2d 259 (2008); Neely v. City of Riverdale, 298 Ga. App. 884, 681 S.E.2d 677 (2009); LandSouth Constr., LLC v. Lake Shadow Ltd., LLC., 303 Ga. App. 413, 693 S.E.2d 608 (2010); Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 709 S.E.2d 314 (2011); Dillon v. Reid, 312 Ga. App. 34, 717 S.E.2d 542 (2011); Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457 (2012); Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013); 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); GeorgiaCarry.Org, Inc. v. Code Revision Commission, 299 Ga. 896, 793 S.E.2d 35 (2016); Osprey Cove Real Estate, LLC v. Towerview Constr., LLC, 343 Ga. App. 436, 808 S.E.2d 425 (2017).

General principles.

- In applying the Civil Practice Act (see now O.C.G.A. Ch. 9, T. 11) to consideration of pleadings, the following principles are applicable: (1) pleadings shall be construed to do substantial justice, that is, shall be liberally construed in favor of the pleader; (2) plaintiff need not allege a cause of action, but only sufficient facts to place the defendant on notice of the claim against the defendant; and (3) the complaint should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Herring v. R.L. Mathis Certified Dairy Co., 118 Ga. App. 132, 162 S.E.2d 863 (1968), aff'd in part and rev'd in part, 225 Ga. 67, 166 S.E.2d 89 (1969).

Purpose is fair and just settlement.

- Pleadings are intended to serve as means of arriving at fair and just settlements of controversies between litigants; pleadings should not raise barriers which prevent the achievement of that end. Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972); Cotton v. Federal Land Bank, 246 Ga. 188, 269 S.E.2d 422 (1980).

Purpose of pleadings to give notice.

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), issues are no longer formed by pleadings, and the pleadings serve only the purpose of giving notice to the opposite party of the general nature of the contentions of the pleader. DeKalb County v. Georgia Paperstock Co., 226 Ga. 369, 174 S.E.2d 884 (1970).

Because a couple's complaint premised on an erroneous listing in a telephone directory failed to allege any of the claims they sought to pursue, specifically, interfering with their 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 their 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).

This section contemplates practice of notice pleading. Whitworth v. Whitworth, 233 Ga. 53, 210 S.E.2d 9 (1974).

Issue pleading eliminated.

- Issue pleading has been eliminated and notice pleading was substituted. Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed sub nom., Herring v. R.L. Mathis Certified Dairy Co., 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970); Stevens v. Stevens, 227 Ga. 410, 181 S.E.2d 34 (1971); Garrett v. Garrett, 231 Ga. 754, 204 S.E.2d 140 (1974).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does away with "issue pleading" and substitutes "notice pleading." Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); Sheppard v. Yara Eng'g Corp., 248 Ga. 147, 281 S.E.2d 586 (1981).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) abolished "issue pleading," substituted in lieu thereof "notice pleading," and directs that all pleadings be so construed as to do substantial justice. Dillingham v. Doctors Clinic, 236 Ga. 302, 223 S.E.2d 625 (1976); Leitzke v. Leitzke, 239 Ga. 17, 235 S.E.2d 500 (1977).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) abolished "issue pleading," substituted in lieu thereof "notice pleading," authorized pleading of conclusions, and directed that all pleadings be construed so as to do substantial justice. Nee v. State Farm Fire & Cas. Co., 142 Ga. App. 744, 236 S.E.2d 880 (1977).

Issues are not made and pointed up by pleading, but by discovery, on pretrial and in the pretrial order, on motions for summary judgment, or other available techniques, and by the evidence itself, unless in instances when some matter is required to be specially pled. Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968).

Notice pleading applicable to both plaintiffs and defendants.

- Liberal rules of notice pleading are to be applied to the defendants as well as the plaintiffs. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Setoff is a cross action, and must be pled with as much certainty and definiteness as a declaration in any suit of law. Morris v. International Agric. Corp., 53 Ga. App. 517, 186 S.E. 583 (1936) (decided under former Code 1933, §§ 81-101 and 81-105); City Stores Co. v. Henderson, 116 Ga. App. 114, 156 S.E.2d 818 (1967) (decided under former Code 1933, §§ 81-101 and 81-105).

General allegations in pleadings sufficient.

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), general allegations are sufficient to support the plaintiff's claim for relief, and in most cases the same liberal rule will apply to the defendant's pleadings. Davis v. Metzger, 119 Ga. App. 750, 168 S.E.2d 866 (1969).

Although a claim against the defendant, as the executrix of an estate, was not explicitly set forth in the plaintiff's complaint, it could be reasonably construed under the liberal pleading requirements of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9,. Dwyer v. McCoy, 236 Ga. App. 326, 512 S.E.2d 70 (1999).

Conclusions may be pled.

- 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).

No technical forms of pleadings or motions are required under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979).

Decisions not made on niceties of pleadings.

- Subsection (f) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), along with Ga. L. 1972, p. 689, § 6 (see O.C.G.A. § § 9-11-15), requires that decisions be made on the merits, and not upon the niceties of pleadings. Owens v. Cobb County, 230 Ga. 707, 198 S.E.2d 846 (1973).

Substance, rather than nomenclature, of legal pleadings determines their nature. Cotton v. Federal Land Bank, 246 Ga. 188, 269 S.E.2d 422 (1980).

Pleadings not judged by name.

- No matter by what name a pleading is called, nature of the action is determined by substance. Deen v. State, 216 Ga. 387, 116 S.E.2d 595 (1960) (decided under former Code 1933, § 81-101).

A buyer's pending motion for reconsideration in a state court suit was construed as a motion for a new trial since nomenclature did not control and the motion raised both factual and legal issues by claiming that the evidence did not show fraud by the buyer because the brokerage agreement with a real estate broker had expired when the buyer purchased the property; since the motion for reconsideration was a motion for a new trial, the motion tolled the time for filing an appeal and the judgment in the state court suit was not final under Georgia law for collateral estoppel purposes in an adversary proceeding in a bankruptcy court. Homeland Group, LLC v. Lawson (In re Credolawson), 546 Bankr. 888 (Bankr. N.D. Ga. 2016).

"Title" applied to pleadings is not binding on court; pleading is judged by the pleading's contents, not by the pleading's name. Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278 (1979).

Court treats pleadings as if there had been a proper designation when justice requires. Gwinnett Com. Bank v. Flake, 151 Ga. App. 578, 260 S.E.2d 523 (1979).

Single misstep in pleading not irrevocable.

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does not penalize a party irrevocably for one misstep in pleading. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

All pleadings shall be so construed as to do substantial justice. McGravey v. Board of Zoning Appeals, 243 Ga. 714, 256 S.E.2d 781 (1979).

Pleadings construed in light most favorable to pleader.

- It is no longer appropriate to construe pleadings against the pleader; 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).

Pleading requirements of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) are to be construed liberally and in favor of the pleader, in furtherance of basic premise behind the Act to substitute "notice pleading" for "issue pleading." Cotton v. Federal Land Bank, 246 Ga. 188, 269 S.E.2d 422 (1980).

Construction of complaint in plaintiff's favor.

- Complaint should be construed in the light most favorable to the plaintiff, with all doubts resolved in the plaintiff's favor; the plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are also possible. Reiner v. David's Super Mkt., Inc., 118 Ga. App. 10, 162 S.E.2d 298 (1968); Hodges v. Youmans, 120 Ga. App. 805, 172 S.E.2d 431 (1969).

Complaints 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. Richter v. D. & M. Assocs., 228 Ga. 599, 187 S.E.2d 253 (1972).

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

Complaint is to be construed in the light most favorable to the plaintiff, and all inferences that can be reasonably drawn are to be construed in the plaintiff's favor. City of Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 (1975).

Pleadings will be construed to serve the best interests of the pleader. Rodgers v. Georgia Tech Athletic Ass'n, 166 Ga. App. 156, 303 S.E.2d 467 (1983).

Complaint is no longer to be construed most strongly against the pleader. Residential Devs., Inc. v. Mann, 225 Ga. 393, 169 S.E.2d 305 (1969); Hodges v. Youmans, 120 Ga. App. 805, 172 S.E.2d 431 (1969); Mitchell v. Dickey, 226 Ga. 218, 173 S.E.2d 695 (1970); Gill v. Myrick, 228 Ga. 253, 185 S.E.2d 72 (1971); Johnson v. Wormsloe Found., Inc., 228 Ga. 722, 187 S.E.2d 682 (1972); Oliver v. Irvin, 230 Ga. 248, 196 S.E.2d 429 (1973); Almaroad v. Giles, 230 Ga. 473, 197 S.E.2d 706 (1973).

Defensive pleadings should be liberally construed in favor of the pleader. Wellbaum v. Murphy, 122 Ga. App 654, 178 S.E.2d 690 (1970).

When the claim is a traditionally disfavored cause of action, such as malicious prosecution, libel, and slander, the complaint is construed by a somewhat stricter standard. Jacobs v. Shaw, 219 Ga. App. 425, 465 S.E.2d 460 (1995); Willis v. United Family Life Ins., 226 Ga. App. 661, 487 S.E.2d 376 (1997).

Civil rule of construction applicable to criminal cases.

- Rule in civil practice that "all pleadings shall be so construed as to do substantial justice" should be no less applicable in a criminal case, especially one involving the death penalty. Birt v. State, 256 Ga. 483, 350 S.E.2d 241 (1986).

Claim sustainable by proof should not be dismissed.

- If complaint gives notice of any claim which plaintiff may have against the defendant that may be sustained by proper proof, the complaint should not be dismissed. Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968).

Unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the plaintiff's claim, the complaint should not be dismissed. Richter v. D. & M. Assocs., 228 Ga. 599, 187 S.E.2d 253 (1972).

Party dismissed only when no set of facts supports claim.

- Under the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, a party should not be dismissed for failure to state a claim against such party 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 against that party. Sheppard v. Yara Eng'g Corp., 248 Ga. 147, 281 S.E.2d 586 (1981).

Opportunity to amend defective pleadings.

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a party is to be given notice and an opportunity to amend defective pleadings when such notice will facilitate a decision on the merits. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Judgment to be specific.

- While "notice pleading" may cover a multitude of sins, the judgment must be specific enough for the individual without inside knowledge to understand it, especially when the judgment is to be a muniment of title. Sease v. Singleton, 246 Ga. 278, 271 S.E.2d 187 (1980).

Litigation with government not to be decided on technicalities.

- People's right to litigate with governmental bodies should not be decided on technicalities any more than one citizen's right to litigate with another citizen. City of Atlanta v. International Soc'y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977).

Affidavit requirement exception to liberal rules of general pleading.

- Provision that a complaint is subject to dismissal for failure to state a claim for relief if the requisite affidavit is not filed contemporaneously with the complaint constitutes an exception to the general liberality of pleading permitted under O.C.G.A. § 9-11-8. Redmond v. Shook, 218 Ga. App. 477, 462 S.E.2d 172 (1995).

Allegations were sufficient to state a cause of action for breach of contract and raise the inference that the recruitment fee was included in the corporation's debt to the staffing company as the complaint specifically referenced a contract that contained a requirement for a corporation to pay a recruitment fee, and further referenced the numerous requests and demands that a staffing company made to the corporation in the corporation's attempts to collect unpaid bills under the contract. Hope Elec. Enters. v. Proforce Staffing, Inc., 268 Ga. App. 302, 601 S.E.2d 723 (2004).

Buyer had set forth proper counterclaims, under O.C.G.A. § 9-11-8(a)(2) and (f), since the buyer's amended, recast and consolidated answer and counterclaim alleged that all of the alleged acts were done by individuals as agents of the corporate defendant, and that all the claims were asserted jointly and severally against all of the defendants. Raza v. Swiss Supply Direct, Inc., 256 Ga. App. 175, 568 S.E.2d 102 (2002).

Shotgun pleading.

- Trial court erred in granting the defendants' motions to dismiss the plaintiffs' complaint for failure to state a claim upon which relief could be granted and for judgment on the pleadings because the trial court should have required the plaintiffs to amend the plaintiffs' complaint and provide a more definite statement of the plaintiffs' claims before passing upon the motions; the amended complaint was a "shotgun pleading" because the complaint was not a short and plain statement of the claims that the plaintiffs asserted as required by O.C.G.A. § 9-11-8(a)(2)(A) of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, the complaint did not give the defendants fair notice of the nature of the claims, and the complaint did not conform to several of the specific pleading requirements of the Act, specifically O.C.G.A. §§ 9-11-8,9-11-9, and9-11-10. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

Short, plain statement giving defendant fair notice required.

- "Short and plain statement of the claim showing that pleader is entitled to relief" is generally regarded as satisfied by short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and grounds upon which the claim rests. Martin v. Martin, 118 Ga. App. 192, 163 S.E.2d 254 (1968).

All that is required as to a claim is a short, plain statement showing the pleader is entitled to relief and a demand for judgment for the relief to which the plaintiff deems to be entitled. Martin v. Approved Bancredit Corp., 224 Ga. 550, 163 S.E.2d 885 (1968), overruled on other grounds, Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974).

Subsection (a) of this section only requires a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and grounds upon which the claim rests. White v. Augusta Motel Hotel Inv. Co., 119 Ga. App. 351, 167 S.E.2d 161 (1969).

Requiring the plaintiff to make a more definite statement of the plaintiff's claim saves judicial resources and permits the trial court, when a sufficiently more definite statement has been pled, to determine whether the complaint states a claim by applying the usual standards for the legal adequacy of a complaint; although the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, does not expressly authorize a court to order a more definite statement in the absence of a motion, O.C.G.A. § 9-11-12(e), there is no reason that a court cannot do so as an exercise of the court's inherent powers to manage the court's docket and to compel compliance with the rules and requirements of civil procedure. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

When a trial court orders a plaintiff to make a more definite statement of his or her claims, the court should identify the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and the court also should warn the plaintiff about the potential consequences of a failure to replead in a way that conforms to these requirements; if the court still cannot ascertain the nature of the claims that the plaintiff seeks to assert, the court may enter another order to replead again, but the trial court and the defendants need not become caught in an endless cycle of attempts to replead, and if it appears that a plaintiff is unable or unwilling to plead in conformance to the Civil Practice Act and the directions of the court, the court may be authorized in some cases to dismiss the complaint under O.C.G.A. § 9-11-41(b), not for a failure to state a claim, but for disregard of the rules and orders of the court. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

Plaintiffs' complaint recited allegations sufficient to satisfy Georgia's notice pleading standard because it was sufficient that the plaintiffs alleged that the defendants released toxic chemicals that damaged the plaintiffs' property; each defendant was on notice that the plaintiffs brought eight causes of action against the defendant, and that was all that Georgia law required. Collins v. King Am. Finishing, Inc., F. Supp. 2d (S.D. Ga. Nov. 9, 2012).

Number of assertable causes of action not limited because complaint contains one count. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).

Brief, plain statement and demand for relief sufficient.

- Brief, plain statement of the claim for which relief is sought, coupled with a demand for such relief, is sufficient to state a claim for relief under subsection (a) of this section. Fowler v. Fowler, 231 Ga. 572, 203 S.E.2d 235 (1974); Ledford v. Meyer, 249 Ga. 407, 290 S.E.2d 908 (1982).

Complaint need not set forth cause of action, but need only set forth claim for relief. Mitchell v. Dickey, 226 Ga. 218, 173 S.E.2d 695 (1970); Gill v. Myrick, 228 Ga. 253, 185 S.E.2d 72 (1971); Seaboard Coast Line R.R. v. Dockery, 135 Ga. App. 540, 218 S.E.2d 263 (1975).

No longer must a cause of action be alleged in a pleading. Johnson v. Wormsloe Found., Inc., 228 Ga. 722, 187 S.E.2d 682 (1972).

With adoption of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a complaint is not required to set forth a cause of action, but need only set forth a claim for relief. Oliver v. Irvin, 230 Ga. 248, 196 S.E.2d 429 (1973); Almaroad v. Giles, 230 Ga. 473, 197 S.E.2d 706 (1973).

Complaint must give the defendant notice of a claim in sufficiently clear terms to enable the defendant to frame a responsive pleading, but it need only state a claim, and need not allege facts sufficient to set forth a cause of action. Bazemore v. Burnet, 117 Ga. App. 849, 161 S.E.2d 924 (1968).

Complaint does not have to allege facts sufficient to set forth a cause of action. Hodges v. Youmans, 120 Ga. App. 805, 172 S.E.2d 431 (1969); Richter v. D. & M. Assocs., 228 Ga. 599, 187 S.E.2d 253 (1972).

Although it need not set forth a cause of action, a complaint must set forth a claim for relief. Hogan v. Peters, 181 Ga. App. 670, 353 S.E.2d 601 (1987).

It is not necessary that a complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place the defendant on notice of the claim against the defendant. Walton v. James & Dean, Inc., 177 Ga. App. 77, 338 S.E.2d 516 (1985).

Complaint alleging breach of contract sufficient.

- Defendant's third-party complaint which alleged that a third-party defendant was the city's engineering firm, that the firm had inspected the sewer and drainage systems as part of the firm's contractual obligation to the city, and that the firm had breached the firm's duties and obligations to the city by failing to determine improper construction or design of the systems, coupled with the submission of a copy of the contract in opposition to the motion for summary judgment constituted sufficient notice of a breach of contract allegation. City of Acworth v. John J. Harte Assocs., 165 Ga. App. 438, 301 S.E.2d 499 (1983).

Trial court erred in granting the defendant's motion to dismiss the plaintiff's claim for breach of contract because the allegations that the defendant demanded and received from the plaintiff an additional $3,850 for license and trophy fees in connection with the purchase of the safari arguably showed the flow of consideration directly from the plaintiff to the defendant for goods and services which the defendant failed to provide creating a third party beneficiary right for the plaintiff. Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508, 767 S.E.2d 513 (2014).

Mere misnomer of a party in the pleadings is a defect which may be waived when the misnamed party is in fact the legally cognizable proper party in interest. Block v. Voyager Life Ins. Co., 251 Ga. 162, 303 S.E.2d 742 (1983).

Dismissal for failure to comply with order for more specific pleading affirmed.

- Graham v. Development Specialists, Inc., 180 Ga. App. 758, 350 S.E.2d 294 (1986).

All elements of cause need not be stated.

- Complaint should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Poole v. City of Atlanta, 117 Ga. App. 432, 160 S.E.2d 874 (1968).

Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), it is not necessary that the petition state all the elements of the cause of action. General Tel. Co. v. Pritchett, 119 Ga. App. 53, 165 S.E.2d 918 (1969); Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969).

Motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the plaintiff's claim. Residential Devs., Inc. v. Mann, 225 Ga. 393, 169 S.E.2d 305 (1969); Stevens v. Stevens, 227 Ga. 410, 181 S.E.2d 34 (1971); Gill v. Myrick, 228 Ga. 253, 185 S.E.2d 72 (1971).

Complaint is not subject to dismissal unless allegations disclose with 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. Tench v. Ivie, 121 Ga. App. 114, 173 S.E.2d 237 (1970).

If, within framework of complaint, evidence may be introduced which will sustain grant of relief to plaintiff, the complaint is sufficient. Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); White v. Augusta Motel Hotel Inv. Co., 119 Ga. App. 351, 167 S.E.2d 161 (1969); Stevens v. Stevens, 227 Ga. 410, 181 S.E.2d 34 (1971); Gill v. Myrick, 228 Ga. 253, 185 S.E.2d 72 (1971); Richter v. D. & M. Assocs., 228 Ga. 599, 187 S.E.2d 253 (1972); Oliver v. Irvin, 230 Ga. 248, 196 S.E.2d 429 (1973); Almaroad v. Giles, 230 Ga. 473, 197 S.E.2d 706 (1973); Seaboard Coast Line R.R. v. Dockery, 135 Ga. App. 540, 218 S.E.2d 263 (1975).

If complaint shows claim on which relief, either legal or equitable, may be granted, the complaint is not subject to dismissal. Brittain v. Camp, 228 Ga. 808, 188 S.E.2d 494 (1972).

Fact that plaintiff has an adequate remedy at law is not a good ground of a motion to dismiss a complaint seeking both legal and equitable relief. Brittain v. Camp, 228 Ga. 808, 188 S.E.2d 494 (1972).

Failure to allege lack of adequate remedy at law is not fatal error. Golston v. Garigan, 245 Ga. 450, 265 S.E.2d 590 (1980).

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, the pleading should not be dismissed for a failure to state a claim. American S. Ins. Co. v. Kirkland, 118 Ga. App. 170, 162 S.E.2d 862 (1968); Byrd v. Ford Motor Co., 118 Ga. App. 333, 163 S.E.2d 327 (1968); Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548, 177 S.E.2d 846 (1970); Dillingham v. Doctors Clinic, 236 Ga. 302, 223 S.E.2d 625 (1976); Leitzke v. Leitzke, 239 Ga. 17, 235 S.E.2d 500 (1977); Nee v. State Farm Fire & Cas. Co., 142 Ga. App. 744, 236 S.E.2d 880 (1977).

Distinction between facts and conclusions immaterial.

- Under notice system of pleading, ancient distinction between pleading "facts" and "conclusions" is no longer significant; the question is simply whether there is a short and plain statement of the claim. Hodges v. Youmans, 120 Ga. App. 805, 172 S.E.2d 431 (1969).

Under notice theory of pleading, it is immaterial whether the pleading states "conclusions" or "facts," as long as fair notice is given and the statement of the claim is short and plain. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

True test is whether the pleading gives fair notice and states elements of the 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).

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).

There are no prohibitions against pleading conclusions and, if pled, the conclusion may be considered in determining whether the complaint sufficiently states a claim for relief. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

Prayer for process not necessary.

- Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) and Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8) eliminated the necessity of prayer for process. Hunt v. Denby, 128 Ga. App. 523, 197 S.E.2d 489 (1973).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) contains no requirement that prayer for process be included in complaint as a prerequisite to valid service of process. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974).

Prayer for relief is not an allegation in the complaint which requires an answer and is not part of the plaintiffs' cause of action. Holloman v. D.R. Horton, Inc., 241 Ga. App. 141, 524 S.E.2d 790 (1999).

Because any pleading which sets forth a claim for relief shall contain a demand for judgment for the relief to which the pleader deems oneself entitled, a general prayer for other relief does not operate to avoid mootness when there was no specific prayer for damages. Babies Right Start v. Ga. Dep't of Pub. Health, 293 Ga. 553, 748 S.E.2d 404 (2013).

It is not necessary to pray specifically for general or nominal damages in order to present question for the jury as to nominal damages. Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979).

Absence of general allegation of negligence not fatal.

- Petition which sets out facts upon which is made a claim of injury and consequent damages is sufficient to meet the requirements of notice pleading, even if there is no allegation that any or all of the facts alleged amounted to acts of negligence on the defendant's part, when the facts alleged are sufficient in themselves to support an allegation of negligence; absence of a general allegation of negligence will not subject the petition to dismissal for failing to state a claim upon which relief can be granted. Beaver v. Southern Greyhound Lines, 120 Ga. App. 576, 171 S.E.2d 658 (1969).

Lack of claims by plaintiff in body of complaint was typographical error.

- Since the defendant contended that, although a non-diverse corporation was listed in the caption of the complaint, it had not in fact brought any claims against the defendant because the body of the complaint referenced only the corporation's sole owner, the complaint did state claims for relief by the corporation, in light of the inclusion of the corporation in the caption, the explanation that the reference to the owner was a typographical error, the obvious intent of the plaintiffs to bring claims on behalf of the corporation, and the absence of prejudice to the defendant. Campbell v. Quixtar, Inc., F. Supp. 2d (N.D. Ga. June 13, 2008).

Plaintiff is no longer required to plead applicable foreign law in order to state a cause of action. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Failure to allege license is not fatal to broker's action for commission. Maxwell v. Tucker, 118 Ga. App. 695, 165 S.E.2d 459 (1968).

When complaint alleges terms of insurance policy and facts upon which the plaintiff relies for relief sought, it places the defendant fairly on notice of its claim, even though the policy is not attached to the complaint. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971).

Counterclaim on same footing as original claim.

- Insofar as general rules of pleading are concerned, a counterclaim stands upon the same footing as the original claim. Grant v. Fourth Nat'l Bank, 229 Ga. 855, 194 S.E.2d 913 (1972).

Complaint in third-party tort action is adequate if sufficient facts are alleged which upon proper proof would allow recovery by the third-party plaintiff from the third-party defendant under applicable substantive tort law when the subject matter is the same as that involved in the original action. Koppers Co. v. Parks, 120 Ga. App. 551, 171 S.E.2d 639 (1969).

Complaint in action for fraud, praying for refund of purchase price with interest, punitive damages, attorney fees, expenses of litigation and general relief, sets forth a claim for relief. Mewall Properties & Loan Corp. v. Cutten, 233 Ga. 291, 210 S.E.2d 819 (1974).

Petition sufficient to state negligence action.

- When an indigent prisoner filed suit alleging that after the prisoners's fall on a wet floor, the prisoner was left unattended in the prison infirmary for over 14 hours until the prisoner was transported to another medical center for surgery to repair a broken leg, asserted that prison officials were negligent, requested damages for the prisoner's residual pain and disabilities, requested a jury trial, and filed the requisite pauper's affidavit and proceeded in forma pauperis, the petition was more than sufficient to set forth a cause of action as it is only necessary that the defendants be placed on notice of the claim against the defendants. Gonzalez v. Zant, 199 Ga. App. 13, 403 S.E.2d 880 (1991).

It is possible for a litigant to plead oneself out of court by revealing state of facts which affirmatively shows that there is no liability on the defendant. Hodge v. Dixon, 119 Ga. App. 397, 167 S.E.2d 377 (1969).

Complaint showing defendant's nonliability subject to dismissal.

- When a complaint reveals facts which affirmatively show that there is no liability on the defendant, the complaint is subject to dismissal. Hatcher v. Moree, 133 Ga. App. 14, 209 S.E.2d 708 (1974).

Dismissal of complaint when clearly without merit.

- Complaint may be dismissed on motion if clearly without any merit, which may consist of 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).

Discretion of court to strike complaint when not in accord with chapter.

- If complaint is not a "short and plain statement of the claim," it is within the trial judge's discretion whether the judge will strike the complaint, granting leave to replead in accordance with the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 183 S.E.2d 586 (1971), overruled on other grounds, Gilson v. Mitchell, 131 Ga. App. 321, 205 S.E.2d 421 (1974).

Jack Jones pleading forms (Ga. L. 1847, p. 490) were not repealed by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) and are still proper methods of pleading. Airport Assocs. v. Audioptic Instructional Devices, Inc., 125 Ga. App. 325, 187 S.E.2d 567 (1972).

"Jack Jones Forms" which were enacted into law in 1847 may continue to be used as the forms meet the requirement of giving "a short and plain statement of the claim showing that the pleader is entitled to relief". Hunt v. Denby, 128 Ga. App. 523, 197 S.E.2d 489 (1973).

Facts.

- Statute requires that facts on which court's venue depends be pled. Chancey v. Hancock, 225 Ga. 715, 171 S.E.2d 302 (1969).

Subsection (a) of this section requires that original complaint contain facts upon which court's venue depends. Reid v. Albright, 142 Ga. App. 826, 237 S.E.2d 229 (1977).

Bare allegation of residence generally sufficient.

- In most cases, bare allegation of the defendant's residence within the county will suffice. Aiken v. Bynum, 128 Ga. App. 212, 196 S.E.2d 180 (1973); Atchinson v. Haley, 132 Ga. App. 264, 208 S.E.2d 22 (1974); Reid v. Albright, 142 Ga. App. 826, 237 S.E.2d 229 (1977).

Complaint which fails to show facts establishing venue is subject to dismissal. Chancey v. Hancock, 225 Ga. 715, 171 S.E.2d 302 (1969).

When a complaint does not set forth facts upon which the court's venue depends, as required by O.C.G.A. § 9-11-8, the complaint is subject to dismissal. Jones v. Woods, 158 Ga. App. 391, 280 S.E.2d 418 (1981).

Failure to plead venue waived unless asserted by responsive pleading.

- Although O.C.G.A. § 9-11-8 requires that a complaint filed pursuant to the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, must set forth the facts on which venue is predicated, a failure to plead such facts is generally held to be waived unless asserted by responsive pleading. G & H Constr. Co. v. Daniels Flooring Co., 173 Ga. App. 181, 325 S.E.2d 773 (1984).

Third-party complaint which does not contain facts upon which court's venue depends is insufficient as a matter of law. Cantrell v. Coleman Co., 140 Ga. App. 344, 231 S.E.2d 123 (1976).

Complaint improperly dismissed for improper venue.

- Trial court erred in dismissing a corporation's complaint for improper venue as the corporation was not bound to fail in the corporation's rescission claim under any provable set of facts because the corporation alleged that a predecessor and an Illinois entity engaged in a fraudulent course of conduct including: (1) the inducement of an unconscionable lease for defective telephone equipment; and (2) the assignment of that lease to the Illinois entity. SRH, Inc. v. IFC Credit Corp., 275 Ga. App. 18, 619 S.E.2d 744 (2005).

Answer to amended complaint not required.

- 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, 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).

Allegations of an amended complaint were deemed denied by operation of law, and because the holding in Division 1 of Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 249 Ga. 418, 420, 291 S.E.2d 698 (Ga. 1982), and its progeny, e.g., Wilson Welding Service v. Partee, 234 Ga. App. 619, 620, 507 S.E.2d 168 (Ga. Ct. App. 1998), conflicted with that rule of law, they were overruled; a trial court erred in holding that a defendant was required to answer an amended complaint to avoid a default and in defaulting a defendant upon a failure to answer an amended complaint. Shields v. Gish, 280 Ga. 556, 629 S.E.2d 244 (2006).

Answer primarily vehicle for denial.

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

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 can incorporate defenses other than mere denial of allegations. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

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 must be sufficiently definite to inform plaintiffs.

- Although the defendant need not set forth any evidence or expose the defendant's defense in detail, it is required that an 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).

It is immaterial whether allegation is one of fact or conclusion if response effectively states an issuable defense. Crymes v. Crymes, 152 Ga. App. 844, 264 S.E.2d 275 (1979).

Answer may raise question as to constitutionality of a statute that will materially affect the defense. Southern Cotton Oil Co. v. Raines, 171 Ga. 154, 155 S.E. 484 (1930) (decided under former Code 1933, § 81-303).

While the defendant must raise all issues of law by proper pleadings, the defendant's answer may raise a question as to the constitutionality of a statute that will materially affect the defense. Buchanan v. Heath, 210 Ga. 410, 80 S.E.2d 393 (1954) (decided under former Code 1933, § 81-303).

When question as to constitutionality of statute was properly raised by attacking specific Code sections as denying the defendant equal protection and due process of law, as guaranteed by the state Constitution and U.S. Const., amend. 14, and the answer clearly pointed out wherein the statute in question violated constitutional provisions, the court could not refuse to consider the question merely because the defendant failed to point out the exact location of due process and equal protection clauses in the Constitutions. Buchanan v. Heath, 210 Ga. 410, 80 S.E.2d 393 (1954) (decided under former Code 1933, § 81-303).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) has no provision similar to former Code 1933, § 81-308, providing that when facts are charged to be within the knowledge of a party or when from all the circumstances such knowledge is necessarily presumed, and that party fails to answer or makes an evasive answer, the charge is taken to be true. Seaboard Coast Line R.R. v. Clark, 122 Ga. App. 237, 176 S.E.2d 596 (1970).

Denial of lack of information under present and former law.

- Under former law, denial for lack of sufficient information when the matter was not peculiarly within knowledge of the defendant was a sufficient denial, whereas under subsection (b) of this section, in order to take advantage of lack of information and knowledge the defendant must allege that the defendant is without knowledge or information sufficient to form a belief as to the truth of an averment. Consolidated Pecan Sales Co. v. Savannah Bank & Trust Co., 122 Ga. App. 536, 177 S.E.2d 808 (1970).

Defendant's denial of liability or indebtedness to seller satisfied O.C.G.A.

§ 15-10-43(c). - In magistrate court proceedings, the defendants were not required to specifically answer each allegation in a plaintiff's complaint, and the defendants were permitted from controverting liability through a general denial pursuant to O.C.G.A. § 9-11-8(b); thus, pretermitting whether the defendants' answer met the requirements for a general denial under the Civil Practice Act, (see now O.C.G.A. Ch. 11, T. 9 the answer amounted to a sufficient response in the magistrate court, denying any liability or indebtedness to the plaintiff, and the trial court erred in finding otherwise. Jones v. Equip. King Int'l, 287 Ga. App. 867, 652 S.E.2d 811 (2007).

General denial.

- Claimant's motion to dismiss the complaint in a forfeiture action was not a responsive pleading in the nature of an answer since the complaint did not raise an assertion that the property was not subject to forfeiture as required by paragraph (o)(3) of O.C.G.A. § 16-13-49, nor did the complaint contain even a general denial of the averments of the allegations of the complaint as would have satisfied subsection (b) of O.C.G.A. § 9-11-8. Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372 (1994).

Plea of insufficient information to admit or deny is a denial.

- Defendants' plea that the defendants were without sufficient information to either admit or deny certain allegations of the complaint had the effect of a denial under subsection (b) of this section. Forsyth County Bd. of Comm'rs v. Adams, 228 Ga. 845, 188 S.E.2d 790 (1972), later appeal, 234 Ga. 315, 215 S.E.2d 679 (1975).

Honesty required.

- Second sentence of subsection (b) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), providing that if a party is without knowledge or information sufficient to form a belief as to the truth of an averment the party shall so state and that this statement shall have the effect of a denial, is subject to the requirements of honesty in pleading set forth in Ga. L. 1966, p. 609, § 11 (see now O.C.G.A. § 9-11-11). Anderson v. Atlanta Univ., Inc., 134 Ga. App. 365, 214 S.E.2d 394 (1975).

Palpably untrue averment of ignorance.

- Principle of subsection (b) does not apply if the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plainly and necessarily within the defendant's knowledge that the defendant's averment of ignorance must be palpably untrue. Weiss v. Moody, 121 Ga. App. 682, 175 S.E.2d 82 (1970); Anderson v. Atlanta Univ., Inc., 134 Ga. App. 365, 214 S.E.2d 394 (1975); North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977).

Knowledge of officers charged to corporation.

- If officer or other persons in charge of corporation's affairs have knowledge, then the corporation should be held to have knowledge, and if those officers or others have information sufficient to form a belief as to the truth of an averment, then the corporation has like information. Stuckey's Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970).

When the defendant "neither admits nor denies allegations," it does not amount to a denial; it must be alleged that the defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Stuckey's Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970).

"Appearance card" not a pleading.

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

Filing of letter as exhibit to defensive pleadings cannot be considered as counterclaim. Carroll v. Afco Credit Corp., 143 Ga. App. 264, 238 S.E.2d 264 (1977).

Answer in response to action on a note, alleging that the note had been satisfied either by credit or by moneys received by complaint, was not a nullity but was sufficient to join the issue in the case and to withstanda motion for judgment on the pleadings and a motion for judgment by default. Robinson v. Rearden, 134 Ga. App. 815, 216 S.E.2d 370 (1975).

Motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense. Wellbaum v. Murphy, 122 Ga. App. 654, 178 S.E.2d 690 (1970).

Defense of sovereign immunity.

- Trial court erred in not granting a city's motion to dismiss the negligence claims against the city because the city was exercising a governmental function when the city demolished an abandoned house claimed to be a nuisance; therefore, the city was entitled to sovereign immunity on those claims. City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013).

Accord and satisfaction.

- Plea of accord and satisfaction is plea in confession and avoidance, and burden of pleading and proving existence, terms, and effect of an accord and satisfaction is on the party relying upon the same. City of Atlanta v. Gore, 47 Ga. App. 70, 169 S.E. 776 (1933) (decided under former Code 1933, § 81-307).

Defense of accord and satisfaction or settlement of claim sued on must be specially pled. Pilgrim Health & Life Ins. Co. v. Jenkins, 47 Ga. App. 441, 170 S.E. 687 (1933) (decided under former Code 1933, § 81-307).

Testimony offered to prove accord and satisfaction is inadmissible on behalf of the defendant whose answer does not set up defense to which such testimony is applicable. Blanchard v. Georgia S. & Fla. Ry., 117 Ga. App. 858, 162 S.E.2d 442 (1968).

Accord and satisfaction must be set forth affirmatively as a defense in the defendants' answer and cannot be raised first by affidavit in support or opposition of a motion for summary judgment. Slappey Bldrs., Inc. v. FDIC, 157 Ga. App. 343, 277 S.E.2d 328 (1981).

Particularity on issues of compromise settlement and accord and satisfaction.

- If a pleading is in response to a prior pleading, such issues as compromise settlement or accord and satisfaction must be set out with particularity. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847 (1969).

Failure of consideration is an affirmative defense which must be pled. Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 264 S.E.2d 571 (1980).

Trial court properly granted summary judgment to an attorney in the attorney's action to collect fees due under a written fee agreement with a former client as the attorney provided the services outlined within the contract, and the former client failed to produce any competent evidence supporting an affirmative defense of failure of consideration after the attorney made a prima facie case for summary judgment. Browning v. Alan Mullinax & Assocs., P.C., 288 Ga. App. 43, 653 S.E.2d 786 (2007).

Plea of total failure of consideration includes partial failure. Carlton Co. v. Allen, 135 Ga. App. 658, 218 S.E.2d 666 (1975).

Bankruptcy.

- Discharge in bankruptcy is an affirmative defense, and the defendant had the burden of proving the defense. Commercial & Exch. Bank v. McDaniel, 147 Ga. App. 378, 249 S.E.2d 97 (1978).

Bankruptcy, to be relied upon as a defense, must not only be pled, but must be pled at the proper time; if not pled, the defense will be held to be waived, when no legal reason is shown to account for the neglect. Duncan v. Southern Sav. Bank, 59 Ga. App. 228, 200 S.E. 561 (1938) (decided under former Code 1933, Ch. 3, T. 81).

Illegality represents an affirmative defense which must be pled. Prudential Timber & Farm Co. v. Collins, 155 Ga. App. 492, 271 S.E.2d 43 (1980).

Fraud and illegality.

- Defenses of fraud and illegality are affirmative defenses which, pursuant to subsection (c) of O.C.G.A. § 9-11-8, must be expressly pled. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 422 S.E.2d 277 (1992).

Defense of laches must be specifically plead in responsive pleadings before the defense can be considered. Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973).

Defense of estoppel.

- Estoppel is an affirmative defense, and must therefore be set forth affirmatively in pleading to a preceding pleading. Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 441 S.E.2d 524 (1994).

Estoppel is an affirmative defense and must be set forth affirmatively in a responsive pleading or in a motion for summary judgment. Rimes Tractor & Equip., Inc. v. Agricredit Acceptance Corp., 216 Ga. App. 249, 454 S.E.2d 564 (1995).

In an action for wrongful foreclosure against a bank by the grantors of security deeds, the bank's theory of estoppel as an affirmative defense against the grantors' claims for cancellation of the bank's deeds under power related to the merits of the grantor's claim, an issue which had no relevancy to the bank's motion to cancel the grantors' notices of lis pendens. Moore v. Bank of Fitzgerald, 266 Ga. 190, 465 S.E.2d 445 (1996).

Trial court erred in finding that a handwritten agreement between the parties constituted an enforceable lease in the landlord's dispossessory action as the only terms listed in the document were a payment schedule and brief damages and indemnification provisions, but there was no indication of when the lease term began or which property was covered; the statute of frauds, O.C.G.A. § 13-5-30(5), was violated, and because the affirmative defense of estoppel under O.C.G.A. § 9-11-8(c) was not raised by the parties, it was error for the trial court to have raised the issue sua sponte. Nacoochee Corp. v. Suwanee Inv. Partners, LLC, 275 Ga. App. 444, 620 S.E.2d 641 (2005).

Statute of limitations must be specially pled. Sellers v. City of Summerville, 91 Ga. App. 105, 85 S.E.2d 56 (1954) (decided under former Code 1933, § 81-307).

Statute of limitations is an affirmative defense which must be set forth when pleading to a preceding pleading. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980).

Trial court erred in granting summary judgment to a dentist and the dental practices in a medical malpractice action, based on misdiagnosis, as the dental defendants failed to meet the defendants' burden pursuant to O.C.G.A. § 9-11-8(c) of showing undisputed evidence that the affirmative defense of the two-year limitations period of O.C.G.A. § 9-3-71(a) barred the action. Brown v. Coast Dental of Ga., P.C., 275 Ga. App. 761, 622 S.E.2d 34 (2005).

Buyer's response to a seller's summary judgment motion in which the buyer raised a statute of limitations defense was properly construed as a cross motion for summary judgment as: (1) pleadings were to be judged by the pleadings' substance and a final judgment was to grant the relief to which the successful party was entitled, even if that party had not demanded such relief; (2) Georgia law authorized a trial court to grant summary judgment to a non-moving party, sua sponte; (3) the seller had ample notice of the statute of limitation defense, but did not respond to it or amend its pleadings; and (4) more than the 30-day statutory period passed before the summary judgment was granted. All Tech Co. v. Laimer Unicon, LLC, 281 Ga. App. 579, 636 S.E.2d 753 (2006).

Appellants were entitled to urge on appeal that the appellees failed to show that certain legal bills fell outside the limitation period of O.C.G.A. § 9-3-31, even if they did not raise that specific factual argument in the trial court; the statute of limitations was an affirmative defense, and so the burden was on the appellees to come forward with evidence sufficient to make out a prima facie case that the appellants' billing claim fell outside the limitation period. Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 648 S.E.2d 690 (2007).

In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff'd, 284 Ga. 376, 667 S.E.2d 366 (2008).

In a medical malpractice case, as the statute of limitations was an affirmative defense, the burden was on the doctors to establish as a matter of law that the patient's "new injury" - metastasized cancer which the doctors failed to diagnose - occurred and manifested itself more than two years before the suit was filed and that the suit was thus time-barred under O.C.G.A. § 9-3-71(a). As the doctors failed to meet that burden, the doctors were not entitled to summary judgment. Cleaveland v. Gannon, 284 Ga. 376, 667 S.E.2d 366 (2008).

Trial court did not err by refusing to consider whether the applicable statute of limitations barred an institute's suit against a debtor on a promissory note and account because the record showed that the debtor failed to raise that defense of any statute of limitation either in the answer or in the response to the institute's motion for summary judgment. Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013).

Trial court did not abuse the court's discretion by permitting the insurance company to amend the company's answer to raise a statute-of-limitations defense to the tree service company owner's (owner's) personal injury claims after the entry of the pre-trial order because the owner failed to show any prejudice since the other defendants had raised the statute-of-limitations defense by the time the insurance company did, so the owner was on notice that the defense would be considered by the trial court. Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 798 S.E.2d 257 (2017).

Res judicata.

- Trial court's order vacating divorce judgment was not barred by the doctrine of res judicata when the wife filed no defensive pleadings and thereby failed to assert res judicata as an affirmative defense. McDade v. McDade, 263 Ga. 456, 435 S.E.2d 24 (1993).

Trial court did not err in granting a lender's motion for summary judgment because the doctrine of res judicata barred a debtor's suit alleging that the lender incorrectly charged interest on the debtor's unsecured revolving line of credit; the same matters were already litigated between the same parties in an action previously adjudicated on the merits by a court of competent jurisdiction. Rose v. Household Fin. Corp., 316 Ga. App. 282, 728 S.E.2d 879 (2012).

Res judicata is an affirmative defense that must be raised in a timely filed responsive pleading. Azarat Mktg. Group, Inc. v. Department of Admin. Affairs, 245 Ga. App. 256, 537 S.E.2d 99 (2000).

O.C.G.A. § 9-11-8(c) does not imply that an affirmative defense can be raised only by answer or the defense is forever waived; although defendants did not raise res judicata in their answer, the defendants raised the defense in their motion to dismiss, giving the plaintiffs fair notice of the defense, and thus there was no error in the trial court's consideration of the res judicata issue. Gerschick & Assocs., P.C. v. Pounds, 266 Ga. App. 852, 598 S.E.2d 522 (2004).

Dismissal properly denied based on failure to plead affirmative defense.

- Trial court did not err in denying a garnishee's motion to dismiss because the garnishor, a foreign corporation, was not shown to have been transacting business in the State of Georgia without the proper certification, and the garnishee did not plead an affirmative defense under O.C.G.A. § 14-2-1502(a). Carrier411 Servs. v. Insight Tech., Inc., 322 Ga. App. 167, 744 S.E.2d 356 (2013).

Affirmative defense of limitations cannot be raised for the first time orally at a hearing on a summary judgment motion without any notice to the opposing party. Hansford v. Robinson, 255 Ga. 530, 340 S.E.2d 614 (1986).

Premature attempt to raise bar of limitations.

- Defendant's attempt to raise the bar of the statute of limitations in appeal by the plaintiff from an automatic dismissal for lack of prosecution was premature. Stone v. Green, 163 Ga. App. 18, 293 S.E.2d 506 (1982).

Written misrepresentation to obtain credit.

- Former Code 1933, § 105-303 (see now O.C.G.A. § 51-6-3), providing that no action shall be sustained for deceit in representation to obtain credit from another unless the misrepresentation is a signed writing, is an affirmative defense that must be set forth in a responsive pleading or be waived. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976).

Corporation's existence.

- General denial by the defendant, or denial for lack of knowledge or information, is insufficient to raise issue as to the corporation's legal existence, and failure to raise such issue by direct negative averment results in a waiver of the defense. Stuckey's Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970).

Unconditional contracts.

- This section does not require an affirmative defense for unconditional contracts in writing; a general denial of indebtedness is sufficient. Tankersley v. Security Nat'l Corp., 122 Ga. App. 129, 176 S.E.2d 274 (1970).

Statute of limitations in brain injury case.

- Trial court did not err in determining that there was evidence that the patient plaintiff incurred a new injury after suffering a massive stroke and permanent brain damage on April 7, 2010, and in concluding that the two-year limitation period under O.C.G.A. § 9-3-71(a) could begin to run on that date, which rendered the plaintiffs' malpractice action timely. Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017).

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

Comparative negligence no longer must be affirmatively pled in response to a pleading. Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969).

Affirmative defense of emergency vehicle need not be pled under subsection (c) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), nor is the defense one of the special matters listed under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9). Walker v. Burke County, 149 Ga. App. 704, 256 S.E.2d 100 (1979).

Immunity is not a defense which must be specifically pled under subsection (c) of O.C.G.A. § 9-11-8. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

County was immune from a lender's suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender's claim that the county failed to give it notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5; immunity was not an affirmative defense, and it was the lender's burden to show that it was waived. Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879, 756 S.E.2d 11 (2014).

Motion to be dismissed as defendants, made by individuals who offered evidence to show that the owner of the vehicle whose driver was involved in an accident was a corporation, did not involve a defense which must be pled affirmatively. Calhoun v. Herrin, 125 Ga. App. 518, 188 S.E.2d 273 (1972).

Waiver.

- If affirmative defense is not pled, it is generally held that such defense is waived. Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972).

Although a dispossessory action was improperly transferred to superior court because a default judgment stood as a final order, appellants, against whom a third-party suit was filed after the transfer, had not challenged the propriety of the transfer in superior court and thus under O.C.G.A. § 9-11-8 had waived their argument that it was improper. Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007).

Defendant may not avail oneself of an affirmative defense which the defendant fails to properly present. Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 264 S.E.2d 571 (1980).

Failure to plead the affirmative defense of the statute of limitations for suits against developers for construction defects, as provided in O.C.G.A. § 9-3-30, results in the defense being waived. Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987).

Trial court erred in finding that a jury question existed as to the issue of whether a pay-if-paid provision in a contract was waived by the general contractor because a verbal statement from an employee of the general contractor to the subcontractor was insufficient to prove a waiver of that contract provision. Vratsinas Constr. Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 739 S.E.2d 493 (2013).

Insured's motion for reconsideration was denied because the insurer was not estopped from seeking a declaration on whether the insurer was entitled to void a policy based upon application misrepresentations because the insurer was not required to promptly rescind a policy and return the premium before seeking a declaratory judgment on whether the insurer was entitled to void a policy based upon application misrepresentations. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441 (2016).

When failure to plead immaterial.

- Failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead the defense, and no surprise is claimed. Bowers v. Howell, 203 Ga. App. 636, 417 S.E.2d 392 (1992).

Late filed defense waived.

- Judgment for the defendant was reversed when the defense of failure to attach an affidavit required by O.C.G.A. § 9-11-9.1 was not presented, by way of amendment to the answer, until three months after the filing of responsive pleadings, and until the statute of limitations on the underlying claim had run. Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988).

Defense of sovereign immunity is not affirmative defense with respect to which the state has the burden of proof. Indeed, neither counsel for the state nor any of the state's agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988).

Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Rather, immunity from suit is a privilege that is subject to waiver by the party seeking to benefit from the waiver, such that in a wrongful death action against the Department of Human Resources, it was incumbent upon the mental health facility patient's parents to establish the department's waiver of immunity. Georgia Dep't of Human Resources v. Poss, 263 Ga. 347, 434 S.E.2d 488 (1993).

Sovereign immunity is not an affirmative defense within the meaning of subsection (c) of O.C.G.A. § 9-11-8 in that it is not lost even if not raised in the first responsive pleading and any waiver must be established by the party benefiting from such waiver. Maxwell v. Cronan, 241 Ga. App. 491, 527 S.E.2d 1 (1999).

Waiver of statute of limitations.

- It is incumbent on party pleading to a preceding pleading to set forth affirmatively any statute of limitations as a defense to an action; failure to do so results in the court's determination that this issue is not raised, even though the issue may be present and could operate as a bar to recovery. Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969).

Unless defense of the statute of limitations is pled affirmatively by the defendant, the defense is waived. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 234 S.E.2d 104 (1977).

When the appellant raises no affirmative defense based upon the statute of limitations, that defense is waived. Wood v. Wood, 239 Ga. 120, 236 S.E.2d 68 (1977).

Plaintiff waived the defense of the statute of limitations to a counterclaim by failure to raise the issue prior to the pretrial order. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980).

Under subsection (c) of O.C.G.A. § 9-11-8, the statute of limitations is an affirmative defense which must be raised at the first opportunity. It is too late to raise the defense initially in the middle of the trial. Owens v. Owens, 248 Ga. 720, 286 S.E.2d 25 (1982).

Failure to raise the defense of the statute of limitation constitutes a waiver of the issue. Coleman v. Burnett, 169 Ga. App. 297, 312 S.E.2d 627 (1983).

Third-party defendant waived any right that the defendant would otherwise have had to rely upon the statute of limitations and the issue could not be considered on appeal, when such defense was not raised in the answer, the motion to dismiss, or other pleading filed in the trial court. Davis v. Betsill, 178 Ga. App. 730, 344 S.E.2d 525 (1986).

No waiver when defense raised by motion, special plea, or summary judgment.

- If affirmative defense is not pled, it is generally held that such defense is waived, but if the defense is raised by motion, by special plea in connection with the answer, or by motion for summary judgment, there is no waiver. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970); Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972).

While generally defenses such as statute of limitations or laches must be affirmatively raised by written answer under subsection (c) of this section, yet when facts as to such an issue are uncontradicted, it may be disposed of by summary judgment, motion to dismiss, or motion for judgment on the pleadings. Beazley v. Williams, 231 Ga. 137, 200 S.E.2d 751 (1973).

Pleading not only way to raise affirmative defense.

- Language of subsection (c) of O.C.G.A. § 9-11-8 does not imply that affirmative defenses may be raised only by a pleading. Brown v. Moseley, 175 Ga. App. 282, 333 S.E.2d 162 (1985).

Affirmative defense may be raised by motion. Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980).

Affirmative defense is timely raised for the first time in a motion for summary judgment. Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014).

Defendant may raise affirmative defense by motion for summary judgment, but only when a motion for summary judgment is the initial pleading tendered by the defendant. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976).

Defense of res judicata raised by the defendant as part of the defendant's motion for summary judgment satisfied the requirements of O.C.G.A. § 9-11-8. Hardy v. Georgia Baptist Health Care Sys., 239 Ga. App. 596, 521 S.E.2d 632 (1999).

When accord and satisfaction was raised by evidence in connection with motion for summary judgment, it was error to overrule te motion for summary judgment simply because the defendant did not file a plea or accord and satisfaction as is generally required under subsection (c) of this section. Catalina, Inc. v. Woodward, 124 Ga. App. 26, 182 S.E.2d 921 (1971).

Evidence of failure of consideration and mistake in summary judgment proceedings.

- When the defendants did not specially plead affirmative defenses of failure of consideration and mistake, as required by subsections (b) and (c) of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8), and Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9(b)), but on motion for summary judgment offered evidence in support of such defenses, thus creating issues of fact on a motion for summary judgment, the moving party was not entitled to judgment as a matter of law. Bailey v. Polote, 152 Ga. App. 255, 262 S.E.2d 551 (1979).

Defense of waiver may be raised by motion for summary judgment. Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 245 S.E.2d 885 (1978).

Some affirmative defenses may properly be raised by motion to dismiss, if the facts are admitted, are not controverted, or are completely disclosed on the face of the pleadings and nothing further can be developed by a trial of the issue; and the rationale of this rule is applicable to the affirmative defense of the statute of frauds. Murrey v. Specialty Underwriters, Inc., 233 Ga. 804, 213 S.E.2d 668 (1975).

Disposition of issue on motion to dismiss, for judgment on pleadings, or for summary judgment.

- Ordinarily affirmative defenses listed in subsection (c) of Ga. L. 1966, p. 609, § 8 (see now O.C.G.A. § 9-11-8) and any other defense not specified in Ga. L. 1967, p. 226, § 9 (see now O.C.G.A. § 9-11-12) must be asserted by answer and cannot be the basis for a motion to dismiss, but if the facts are admitted, are not controverted, or are completely disclosed on the face of the pleadings and nothing further can be developed by a trial of the issue, the matter may be disposed of upon motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment. Ezzard v. Morgan, 118 Ga. App. 50, 162 S.E.2d 793 (1968).

While generally defenses such as statute of limitations or laches must be affirmatively raised by written answer, yet when the 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. O'Quinn v. O'Quinn, 237 Ga. 653, 229 S.E.2d 428 (1976).

Affirmative defenses listed in this section may be raised by amendment. Security Ins. Co. v. Gill, 141 Ga. App. 324, 233 S.E.2d 278 (1977).

No evidence of affirmative defenses under general denial.

- While an express denial of allegations of a complaint is sufficient to create a triable issue, under such general denial the defendant would not be permitted to present any evidence as to the affirmative defenses of the type itemized in subsection (c) of this section. Knickerbocker Tax Sys. v. Texaco, Inc., 130 Ga. App. 383, 203 S.E.2d 290 (1973).

Under general denial, the defendant is not permitted to present evidence as to any affirmative defense of the type itemized in subsection (c) of this section. Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 264 S.E.2d 571 (1980).

Unless plaintiff waives objection.

- Even absent a specific pleading, when accord and satisfaction is set out by evidence which is not objected to, such issue is before the court, the plaintiff having waived objection. Wood v. Yancey Bros. Co., 135 Ga. App. 720, 218 S.E.2d 698 (1975).

Defense may be dismissed as a counterclaim. Whitehurst v. Universal C.I.T. Credit Corp., 131 Ga. App. 202, 205 S.E.2d 489 (1974).

Under former Code 1933, § 109A-307, admission by the defendant of execution of a note to the plaintiff gives the plaintiff prima facie right to judgment, and the defendant then has the burden of establishing any claimed defense to an action as set forth in subsection (c) of Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-8). Malone v. Price, 138 Ga. App. 514, 226 S.E.2d 623 (1976).

Defendant's mere denial of debt for various general reasons not contained in Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-8) does not constitute a defense under former Code 1933, § 109A-307, relating to defenses to notes. Malone v. Price, 138 Ga. App. 514, 226 S.E.2d 623 (1976).

Claim of statutory immunity under Georgia's workers' compensation scheme is affirmative defense and subject to waiver under Rule 8(c), Fed. R. Civ. P., in federal diversity of citizenship actions. Troxler v. Owens-Illinois, Inc., 717 F.2d 530 (11th Cir. 1983).

Noncompliance with a contract provision is not an affirmative defense under subsection (c) of O.C.G.A. § 9-11-8. Carpenters Local 1977 v. General Ins. Co. of Am., 167 Ga. App. 299, 306 S.E.2d 383 (1983).

Affirmative defense of failure of consideration not barred.

- In a suit on a promissory note, the trial court did not err by considering the affirmative defense of failure of consideration, which the maker had not pled, since the payee failed to object when the maker's counsel argued failure of consideration in the maker's opening statement and in the maker's motion for directed verdict; this issue was thus tried by the implied consent of the parties under O.C.G.A. § 9-11-15(b). Drake v. Wallace, 259 Ga. App. 111, 576 S.E.2d 87 (2003).

Failure of consideration was waived by not having been raised in the pleadings, and could not be raised by an affidavit in support of a motion for summary judgment. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981).

Defense of failure of consideration is not available when a note has been renewed. Richards v. Southern Fin. Corp., 171 Ga. App. 268, 319 S.E.2d 103 (1984).

Payment is a matter that must be specially pled. Rahal v. Titus, 107 Ga. App. 844, 131 S.E.2d 659 (1963) (decided under former Code 1933, § 81-307).

Defense of payment must be specially pled by a principal debtor or added by amendment. Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 136 S.E.2d 505 (1964) (decided under former Code 1933, § 81-307).

Raising defense of partial payment in response to summary judgment motion not untimely.

- Although the defendant by the defendant's answer denied the substance of the complaint in the various averments and a plea of partial payment could have been added by amendment, the trial court did not err in considering such a claim when raised in response to the plaintiff's motion for summary judgment. White v. McCarty, 171 Ga. App. 666, 320 S.E.2d 796 (1984).

Defense of estoppel must be set forth affirmatively in pleading to a preceding pleading. Jones v. Miles, 656 F.2d 103 (5th Cir. 1981).

Pleading should not be dismissed for failure to state a claim if it appears beyond a doubt that the pleader can prove no set of facts in support of the claim which would entitle the pleader to relief. This principle is applicable to all pleadings, including special matters (fraud, mistake, and conditions precedent) under O.C.G.A. § 9-11-9. Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983).

Defendant barred from disputing matter not denied.

- Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading, and the defendant, who did not deny a claim of a license under the Georgia Industrial Loan Act (see nw O.C.G.A. Ch. 3, T. 7), was therefore barred from disputing the applicability of the chapter to the loan on appeal. Termplan, Inc. v. Joseph, 151 Ga. App. 689, 261 S.E.2d 433 (1979).

In a declaratory judgment action for a determination that a county's sign ordinance was unconstitutional, because the defendant county did not deny the plaintiff's averment that a true and correct copy of the applicable ordinance was attached to the complaint, the averment was admitted and no further proof was required. Outdoor Sys., Inc. v. Cherokee County, 243 Ga. App. 406, 533 S.E.2d 446 (2000).

Plaintiff entitled to judgment on pleadings.

- Plaintiff was entitled to judgment on the pleadings when the complaint alleged that the defendant converted a vehicle and the pro se defendant merely asserted that the defendant wanted to come before the court to "state her case" since such assertion did not constitute a general denial. Universal Underwriters Ins. Co. v. Albert, 248 Ga. App. 415, 546 S.E.2d 361 (2001).

Insurer not bound by defendant's admissions.

- Although a named, served defendant may waive the right to defend against an action, the defendant's waiver and default cannot be permitted to injure the statutory right of the insurer to defend the action in the insurer's own name, which would be the result if the insurer were held bound by the defendant's admissions based upon subsection (d) of this section. Glover v. Davenport, 133 Ga. App. 146, 210 S.E.2d 370 (1974).

Defendant's affirmative defense deemed denied.

- If allegations of defendant's affirmative defense are not admitted, they are deemed denied. Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 195 S.E.2d 674 (1973).

Defendant may not obtain judgment on pleadings on basis of answer only.

- Defendant may not obtain judgment on the pleadings on basis of allegations in the defendant's answer when no reply is required since under subsection (d) of this section these allegations are deemed denied. GMAC v. Jackson, 119 Ga. App. 221, 166 S.E.2d 739 (1969); Lord v. Smith, 143 Ga. App. 378, 238 S.E.2d 731 (1977).

Construction of subsection (e).

- Subsection (e) of this section allows inconsistent, hypothetical, and alternative claims in pleading, and is to be construed like its federal counterpart, Fed. R. Civ. P. 8(e)(2). D.H. Overmyer Co. v. Kapplin, 122 Ga. App. 51, 176 S.E.2d 207 (1970).

Provision procedural.

- Portion of this section which deals with pleading actions sounding simultaneously or alternatively in tort and contract is procedural, and goes only to the remedy. Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969).

Complaint may now contain as many separate claims against defendants as plaintiff may have, regardless of inconsistency, the claims may be based on legal grounds and equitable grounds, and may arise out of tort and also out of contract. Giordano v. Stubbs, 129 Ga. App. 283, 199 S.E.2d 322 (1973), rev'd on other grounds sub nom., Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974).

Legal and equitable claims in same complaint.

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), both legal and equitable claims may be set forth in the same complaint. Miller v. Turner, 228 Ga. 701, 187 S.E.2d 688 (1972).

Alternative allegations are now permissible under the Civil Practice Act (see nw O.C.G.A. Ch. 11, T. 9). Miller v. Turner, 228 Ga. 701, 187 S.E.2d 688 (1972).

Plaintiff has right to try case on alternate theories, and cannot be required to elect upon which theory to proceed. D.H. Overmyer Co. v. Kapplin, 122 Ga. App. 51, 176 S.E.2d 207 (1970).

Complaint which contains alternative statements of claim will not be dismissed if any one alternative statement supports the claim. Hodges v. Youmans, 120 Ga. App. 805, 172 S.E.2d 431 (1969); Utica Mut. Ins. Co. v. Kelly & Cohen, Inc., 233 Ga. App. 555, 504 S.E.2d 510 (1998).

Inconsistent remedies may be pursued until satisfaction is obtained. D.H. Overmyer Co. v. Kapplin, 122 Ga. App. 51, 176 S.E.2d 207 (1970).

Party may pursue any number of inconsistent remedies prior to formulation and entry of judgment. Waller v. Scheer, 175 Ga. App. 1, 332 S.E.2d 293 (1985).

Party's discussion of one theory in opening argument does not limit jury's consideration.

- Under O.C.G.A. § 9-11-8, a party may seek recovery under several alternative and inconsistent theories and may sue on one theory and recover under another if supported by the evidence; therefore, a party's discussion of one theory in the party's opening statement does not limit the issues which are presented for consideration by the jury so as to constrain the jury in considering the issues presented by the evidence at trial. Barnett v. Freeman, 157 Ga. App. 760, 278 S.E.2d 694 (1981).

Trial court's instruction that it is common practice to file inconsistent pleadings and that it is perfectly acceptable under the law to do so stated the correct principle of law and was not error. City of Waycross v. Beaty, 157 Ga. App. 765, 278 S.E.2d 697 (1981).

Counterclaim incorrectly stricken.

- In suit to recover on purchase order, the trial court erred in striking a counterclaim for breach of warranty because it was allegedly redundant in view of an affirmative defense of right to refuse payment because of nonconformity. Bingham, Ltd. v. Tool Technology, Inc., 166 Ga. App. 220, 303 S.E.2d 761 (1983).

When election between inconsistent remedies must be made.

- Election of remedies, though "abolished" by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), must be made prior to judgment when inconsistent remedies are sought in one action. Rosenberg v. Mossman, 140 Ga. App. 694, 231 S.E.2d 417 (1976).

Election between inconsistent remedies, when necessary, can be made at any time after the verdict and prior to entry of the judgment. Leslie, Inc. v. Solomon, 141 Ga. App. 673, 234 S.E.2d 104 (1977).

Defense of insufficient service of process.

- Trial court abused the court's discretion by dismissing the plaintiff's complaint due to insufficient process because when the defendant moved to dismiss the complaint on the ground that the service copy of the complaint lacked pages containing five paragraphs and the signature page with prayers for relief, the defendant failed to attach an affidavit of the person who received service on the defendant's behalf and, thus, the defendant failed to submit sufficient evidence to show improper service of process. Sampson v. Ga. Dep't of Juvenile Justice, 328 Ga. App. 733, 760 S.E.2d 203 (2014).

Contradictory or inconsistent pleas.

- Defendant may in different paragraphs of an answer file contradictory or inconsistent pleas. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936) (decided under former Code 1933, § 81-310).

Defendant may file contradictory pleas. Hadden v. Fuqua, 194 Ga. 621, 22 S.E.2d 377 (1942) (decided under former Code 1933, § 81-310).

Matters in abatement and in bar may be mixed in same answer, and one defense will not defeat another. Galloway v. Merrill, 213 Ga. 633, 100 S.E.2d 443 (1957) (decided under former Code 1933, § 81-305).

Defendant is entitled to file as many separate defenses as the defendant desires, regardless of whether such defenses are inconsistent or contradictory. Brooks v. West Lumber Co., 88 Ga. App. 510, 77 S.E.2d 43 (1953) (decided under former Code 1933, § 81-310).

Defendant's pleas and answer may contain as many several matters as defendant thinks necessary for a defense, and no part of the answer shall be stricken out or rejected because it may be contradictory to other portions of the answer. Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962) (decided under former Code 1933, § 81-310).

Pleading comparative negligence.

- Alternative pleading of a defendant in a negligence suit that even if it were found negligent, the negligence of the plaintiff equaled or exceeded its own is appropriate. Wilson v. Norfolk S. Corp., 200 Ga. App. 523, 409 S.E.2d 84 (1991).

Defenses of negligence and legal accident.

- Party is entitled to plead alternative theories of defense. Thus, when the plaintiff's fall in the produce department of a grocery store possibly could have been the result of an event not proximately caused by negligence but which instead arose from an unforeseen or unexplained cause, the trial court did not err in charging the jury on the theory of legal accident. Shennett v. Piggly Wiggly S., Inc., 197 Ga. App. 502, 399 S.E.2d 476 (1990).

Exculpatory clause inadequate.

- Trial court erred in granting summary judgment to a rehabilitation company based on a contractual exculpatory clause because the material provisions of the agreement at issue were illegible and given that an affidavit was insufficient to establish a basis for the admission of the alleged exemplar, the company failed to show that the agreement signed by the participant contained an exculpatory clause waiving and releasing the company from liability for the company's own negligence. Sanchez v. Atlanta Union Mission Corp., 329 Ga. App. 158, 764 S.E.2d 178 (2014).

Inconsistent third-party complaint allowed.

- In a breach of warranty action involving a survey commissioned by the defendants, the defendant's third-party complaint against the surveyor and filing of an expert's affidavit stating that the survey was incorrect did not estop the defendant from relying on the survey in defense of the action. Ewers v. Cooper, 217 Ga. App. 434, 457 S.E.2d 705 (1995).

Trial court erred to the extent the court ruled that an insurer was prevented from introducing any evidence on liability following a default judgment entered against the insurer because the insurer could still assert policy defenses but, otherwise, by failing to answer timely the insurer was precluded from asserting any affirmative defense included within O.C.G.A. § 9-11-8(c). Willis v. Allstate Ins. Co., 321 Ga. App. 496, 740 S.E.2d 413 (2013).

Am. Jur. 2d.

- 1 Am. Jur. 2d, Accord and Satisfaction, § 48. 25 Am. Jur. 2d, Duress and Undue Influence, §§ 38, 48. 27A Am. Jur. 2d, Equity, § 183 et seq. 28 Am. Jur. 2d, Estoppel and Waiver, §§ 149 et seq., 204 et seq. 37 Am. Jur. 2d, Fraud and Deceit, § 441 et seq. 61A Am. Jur. 2d, Pleading, §§ 31 et seq., 107 et seq., 211 et seq. 73 Am. Jur. 2d, Statute of Frauds, § 475 et seq.

1 Am. Jur. Pleading and Practice Forms, Accord and Satisfaction, § 8. 8C Am. Jur. Pleading and Practice Forms, Duress and Undue Influence, § 1. 9A Am. Jur. Pleading and Practice Forms, Estoppel and Waiver, § 5. 19B Am. Jur. Pleading and Practice Forms, Pleading, §§ 32, 35.

C.J.S.

- 35A C.J.S., Federal Civil Procedure, §§ 239, 241, 245, 249 et seq., 266, 289 et seq., 312, 328, 374, 389, 431. 35B C.J.S., Federal Civil Procedure, § 827 et seq. 71 C.J.S., Pleading, §§ 35 et seq., 40, 52, 61 et seq., 86, 94, 98 et seq., 127 et seq., 139, 145, 162 et seq.

ALR.

- Pleadings containing self-serving declarations as evidence, 1 A.L.R. 39.

Burden of proof as regards discharge in bankruptcy, 2 A.L.R. 1672.

Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 A.L.R. 1151.

Admissibility of pleadings for purposes other than the establishment of the facts set out therein, 14 A.L.R. 103.

Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within the statute of frauds, 22 A.L.R. 735.

Right under general prayer to relief inconsistent with prayer for specific relief, 30 A.L.R. 1175.

Liability to patient for results of medical or surgical treatment by one not licensed as required by law, 44 A.L.R. 1418; 57 A.L.R. 978.

Form of pleading necessary to raise issue of corporate existence, 55 A.L.R. 510.

Right of foreign corporation to plead statute of limitations, 59 A.L.R. 1336; 122 A.L.R. 1194.

Waiver of benefit of statute or rule by which allegation in pleading of execution or of consideration of written instrument must be taken as true unless met by verified denial, 67 A.L.R. 1283.

Amendment of pleadings after limitation has run by change in capacity in which suit is prosecuted, 74 A.L.R. 1269.

Amendment of pleading after limitation period by substituting new defendant, or changing allegations as to capacity in which defendant is sued or the theory upon which defendant is sought to be held responsible for another's wrong, as stating a new cause of action, 74 A.L.R. 1280.

Necessity of pleading affirmative defense in divorce suit, 76 A.L.R. 990.

Pleading particular cause of injury as waiver of right to rely on res ipsa loquitur, 79 A.L.R. 48; 2 A.L.R.3d 1335.

Sufficiency of allegations of loss of patronage or profits to permit recovery of special damages from false publication, 86 A.L.R. 848.

Necessity of alleging fact of agency in declaring upon contract made by party through agent, 89 A.L.R. 895.

Waiver of tort and recovery in assumpsit for conversion as dependent on or affected by sale of the goods by the converter, 97 A.L.R. 250.

May payment be proved under general issue or general denial, or must it be specially pleaded, 100 A.L.R. 264.

Sufficiency of allegation of insolvency without further statement of facts, 101 A.L.R. 549.

Time requirements prescribed by statute granting right to sue United States or a state as a condition of jurisdiction which renders it unnecessary to plead specially their breach in defense, 106 A.L.R. 215.

Form and sufficiency of allegations of heirship, 110 A.L.R. 1239.

Necessity and sufficiency of allegations in regard to trust in a pleading in action by trustee against third parties, 112 A.L.R. 1514.

Propriety and effect of including in plaintiff's pleading in action for negligence diverse or contradictory allegations as to status or legal relationship as between parties or as between party and third person, 115 A.L.R. 178.

Necessity and sufficiency of reply to answer pleading of statute of limitations, 115 A.L.R. 755.

Sufficiency of complaint in action against railroad for killing or injuring person or livestock as regards time, and direction and identification of train, 115 A.L.R. 1074.

Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8.

Burden of allegation and proof in civil cases as regards of exception in statute, 130 A.L.R. 440.

Manner and sufficiency of pleading foreign law, 134 A.L.R. 570.

Necessary allegations in a declaration or complaint in action against physician or surgeon based on wrong diagnosis, 134 A.L.R. 683.

Necessity and sufficiency of pleading custom or usage, 151 A.L.R. 324.

Presumption as to payment or discharge of obligation from obligor's possession of paper evidencing it, 156 A.L.R. 777.

Manner of pleading statute of frauds as defense, 158 A.L.R. 89.

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.

Pleading laches, 173 A.L.R. 326.

Propriety and effect of pleading different degrees of negligence or wrongdoing in complaint seeking recovery for one injury, 173 A.L.R. 1231.

Necessity of pleading that tort was committed by servant, in action against master, 4 A.L.R.2d 292.

Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.

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

Pleading aggravation of a preexisting physical condition, 32 A.L.R.2d 1447.

Pleading bona fide purchase of real property as defense, 33 A.L.R.2d 1322.

Defense of adverse possession or statute of limitations as available under general denial or plea of general issue in ejectment action, 39 A.L.R.2d 1426.

Manner and sufficiency of pleading agency in contract action, 45 A.L.R.2d 583.

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

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.

Raising statute of limitations by motion for summary judgment, 61 A.L.R.2d 341.

Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.

Necessity and manner of pleading denial of partnership in action by third person against alleged partners, 68 A.L.R.2d 545.

Enforceability of bail bond or recognizance against surety where, at time it was filed, prosecution of principal was barred by statute of limitations, 75 A.L.R.2d 1431.

Malpractice in treatment and surgery of the ear, 76 A.L.R.2d 783.

Recovery on quantum meruit where only express contract is pleaded, under Federal Rules of Civil Procedure 8 and 54 and similar state statutes or rules, 84 A.L.R.2d 1077.

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

Necessity and sufficiency of allegation, in a suit for specific performance of a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

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.

Applicability, in action against nurse in her professional capacity, of statute of limitations applicable to malpractice, 8 A.L.R.3d 1336.

Malpractice: liability of physician or hospital where patient suffers heart attack or the like while undergoing unrelated medical procedure, 17 A.L.R.3d 796.

Mutuality of estoppel as prerequisite of availability of doctrine of collateral estoppel to a stranger to the judgment, 31 A.L.R.3d 1044.

Propriety of attaching photographs to a pleading, 33 A.L.R.3d 322.

Liability of hospital for refusal to admit or treat patient, 35 A.L.R.3d 841.

Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41 A.L.R.3d 536.

When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.

Duty of physician or surgeon to warn or instruct nurse or attendant, 63 A.L.R.3d 1020.

May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R.3d 901.

Economic duress or business compulsion in execution of promissory note, 79 A.L.R.3d 598.

Medical malpractice: patient's failure to return, as directed, for examination or treatment as contributory negligence, 100 A.L.R.3d 723.

Medical malpractice: administering or prescribing drugs for weight control, 1 A.L.R.4th 236.

Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.

Medical malpractice: administering or prescribing birth control pills or devices, 9 A.L.R.4th 372.

Validity of statute establishing contingent fee scale for attorneys representing parties in medical malpractice actions, 12 A.L.R.4th 23.

Medical malpractice: res ipsa loquitur in negligent anesthesia cases, 49 A.L.R.4th 63.

Tortious maintenance or removal of life supports, 58 A.L.R.4th 222.

Social worker malpractice, 58 A.L.R.4th 977.

Liability for medical malpractice in connection with performance of circumcision, 75 A.L.R.4th 710.

Medical malpractice: who are "health care providers," or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

Hospital liability as to diagnosis and care of patients in emergency room, 58 A.L.R.5th 613.