Daniel & Daniel, Inc. v. Cosmopolitan Co., s. 55674
| Decision Date | 12 June 1978 |
| Docket Number | 55675,Nos. 55674,s. 55674 |
| Citation | 146 Ga.App. 200,245 S.E.2d 885 |
| Court | Georgia Court of Appeals |
| Parties | DANIEL & DANIEL, INC. v. COSMOPOLITAN COMPANY et al. (two cases). |
Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblie, for appellant.
Schwall & Heuett, Donald J. Goodman, Atlanta, for appellees.
Plaintiff brought these two contract actions to recover for labor and materials furnished to defendant Cosmopolitan's construction projects. Plaintiff had filed its claims of lien against the real property of Cosmopolitan. These liens were discharged by the filing of a bond in which the defendant Utica Mutual was a joint obligor. During the litigation Cosmopolitan was adjudicated bankrupt and the trustee in bankruptcy was substituted as party defendant for Cosmopolitan. The trial court granted the defendants' motions for summary judgment. The issues in each case are identical. Held :
1. In their original answers neither defendant pleaded the defense of waiver. Thereafter defendants served plaintiff with requests for admission of fact and authenticity of documents and accompanying motions for summary judgments. The documents which were the subject of the requests for admission were waivers of lien on the property involved in these suits. The summary judgment motions were based on the ground that defendants were entitled to judgment on the basis of the lien waivers. The plaintiff objected to answering the requests on the ground that the matter of waiver of liens was irrelevant to the suits as the defense of waiver had not been affirmatively pleaded in the defendants' answers as required by CPA § 8 (c) (Code Ann. § 81A-108 (c)) and therefore this defense had been waived. The trial court denied this objection and ordered plaintiff to answer and it complied. The defense of waiver is generally waived if not pleaded. But it can be raised by motion for summary judgment. Phillips v. State Farm &c. Ins. Co., 121 Ga.App. 342, 173 S.E.2d 723. Moreover, defendants later amended these answers and pleaded waiver prior to the entry of a pre-trial order. A party may amend his pleadings as a matter of course and without leave of court at any time before the entry of a pre-trial order. CPA § 15 (a) (Code Ann. § 81A-115(a)). The trial court did not err in directing plaintiff to respond to the requests.
2. Plaintiff admitted that it executed waivers of any and all liens on account of labor or materials or both furnished or which may be furnished by plaintiff to the defendant Cosmopolitan. Plaintiff, in opposition to defendants' motion for summary judgment based on these lien waivers, submitted...
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Sawyer v. Citizens and Southern Nat. Bank
...in any pleading or in its motion for summary judgment. Therefore, the defenses were waived. Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga.App. 200, 201(1), 245 S.E.2d 885 (1978); Phillips, 121 Ga.App. at 345(2), 173 S.E.2d 723, supra. Also, according to the record and transcript, St. Pa......
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Hardy v. Ga. Baptist Health Care Systems
...[Cits] Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga.App. 342, 346(2), 173 S.E.2d 723 (1970); Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga.App. 200, 201(1), 245 S.E.2d 885 (1978). An affirmative defense can be raised for the first time on motion for summary judgment or other motio......
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Brown v. Moseley
...Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga.App. 342, 346, 173 S.E.2d 723, supra. Accord Daniel & Daniel v. Cosmopolitan Co., 146 Ga.App. 200, 201(1), 245 S.E.2d 885 (1978). Thus the first ground 2. The rule has long been established that a release executed in favor of one joint tort......
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Porter Coatings v. Stein Steel & Supply Co.
...Inc. v. GST Dev. Co., 135 Ga.App. 845, 219 S.E.2d 458. The language of these waivers is clear and unambiguous. Daniel & Daniel v. Cosmopolitan Co., 146 Ga.App. 200, 245 S.E.2d 885. Even if a lien had accrued (and we hold in Division 2 that none accrued), there exists no question of fact to ......