Glaser v. Meck

258 Ga. 468 (1988)

369 S.E.2d 912

GLASER et al. v. MECK et al.

45685.

Supreme Court of Georgia.

Decided July 14, 1988.

Reconsideration Denied July 29, 1988.

Sell & Melton, John A. Draughon, for appellants.

Smith, Gambrell & Russell, David A. Handley, Stephen F. Dermer, for appellees.

Richard L. Greene, H. Andrew Owen, Jr., James E. Butler, Jr., Thomas W. Bennett, Thomas W. Malone, Thomas S. Carlock, Allen F. Harris, Maurice N. Maloof, J. David Dantzler, Jr., Virginia B. Peterson, *469 amici curiae.

SMITH, Justice.

1. Under OCGA § 9-11-12 (b), all defenses (except certain enumerated motions) "shall be asserted in the responsive pleadings."

The defense raised by the appellee, Dr. Meck (a failure to attach to the complaint at the time of filing a certain affidavit) was not "asserted in the responsive pleading." Nor was that defense one of the enumerated motions.

Indeed, it 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.

2. Had the failure to comply with new OCGA § 9-11-9.1 been brought to the appellant's attention at the time the appellee filed responsive pleadings, she could have dismissed the pending action, and filed a renewed action before the statute of limitations would have run.

Because of the failure of the appellee to assert this defense at the time of the filing of responsive pleadings, as required by OCGA § 9-11-12 (b), that possibility is no longer available to the appellant.

3. OCGA § 9-11-8 (f) provides: "All pleadings shall be so construed as to do substantial justice." We do not view it as substantial justice in this case and under these circumstances to award a final victory to the appellee upon a pleading default by the appellant, when that matter comes to the attention of the court only because the appellee has been permitted to remedy his own pleading default, and this after the running of the statute of limitations on the underlying claim.

Judgment reversed. All the Justices concur, except Marshall, C. J., and Bell, J., who dissent, and Hunt, J., not participating.