Hardy v. Georgia Baptist Health Care System Inc.8/11/1999
On June 7, 1996, Tina Hardy, plaintiff-appellant, sued Georgia Baptist Health Systems, Inc. d/b/a Liberty Home Health Services, defendant-appellee, on claims arising from her termination as an employee. These claims were based upon three federal issues-theories, as follows: (1) 42 U. S. C. § 1985 (3); (2) equal protection, and the privileges and immunity clause, as guaranteed by the Fourteenth Amendment; and (3) the free speech clause of the First Amendment. There were also two pendent state claims, i.e., intentional infliction of emotional distress and OCGA § 31-39-1 et seq. In the federal action, defendant moved for, and on April 25, 1997, was granted summary judgment on all theories.
In anticipation of such adverse determination, on February 7, 1997, plaintiff filed this defamation action against the defendant. By subsequent amendments on February 14, 1997, July 9, 1997, and July 25, 1997, plaintiff expanded the complaint also to allege conspiracy to terminate and wrongful termination in retaliation for free speech, intentional infliction of emotional distress, and OCGA § 31-39-1 et seq. Defendant again moved for summary judgment.
Defendant did not raise in either the answer or the amended answer, the affirmative defense of res judicata. See OCGA § 9-11-8 (c). However, defendant raised the affirmative defense of res judicata as part of its motion for summary judgment and filed copies of the federal complaint and federal order granting summary judgment.
On December 7, 1997, the trial court granted summary judgment on the basis of res judicata. On January 2, 1998, plaintiff filed her notice of appeal.
The enumeration of error is that the trial court erred in granting summary judgment. We do not agree.
(1.) Plaintiff first contends that the trial court erred in considering the affirmative defense on summary judgment when it had not been first raised by answer or amendment. However, subsection "c" of OCGA § 9-11-8 does not imply that an affirmative defense can only be raised by answer. OCGA § 9-11-8 (c); Brown v. Moseley, 175 Ga. App. 282 (333 SE2d 162) (1985). "The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver. [Cits]" Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 346 (2) (173 SE2d 723) (1970); Daniel & Daniel v. Cosmopolitan Co., 146 Ga. App. 200, 201 (1) (245 SE2d 885) (1978). An affirmative defense can be raised for the first time on motion for summary judgment or other motions. O'Quinn v. O'Quinn, 237 Ga. 653, 654 (229 SE2d 428) (1976); Beazley v. Williams, 231 Ga. 137, 138 (200 SE2d 751) (1973); Rimes Tractor & Equip., Inc. v. Agricredit Acceptance Corp., 216 Ga. App. 249, 250-251 (454 SE2d 564) (1995); Brown v. Quarles, 154 Ga. App. 350, 351-352 (1) (268 SE2d 403) (1980); Phillips v. State Farm Mut. Auto. Ins. Co., supra at 346; Ezzard v. Morgan, 118 Ga. App. 50, 51 (1) (162 SE2d 793) (1968). However, an affirmative defense cannot be raised for the first time on oral argument on motion for summary judgment, because the opposing party has been afforded no notice to defend against such surprise affirmative defense. Hansford v. Robinson, 255 Ga. 530 (1) (340 SE2d 614) (1986). In this case, the trial court had the issue of res judicata before it on the record.
(2) OCGA § 9-12-40 provides that " judgment of a court of competent jurisdiction shall be conclusive between the same parties and their pr
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