Williams-East, Inc. v. Weeks

• Decision Date: 05 January 1981
• Docket Number: 60367,WILLIAMS-EAS,INC,Nos. 60366,s. 60366
• Citation: 275 S.E.2d 801,156 Ga.App. 861
• Parties: v. WEEKS et al (two cases).
• Court: Georgia Court of Appeals

Page 801

275 S.E.2d 801

156 Ga.App. 861

WILLIAMS-EAST, INC. v. WEEKS et al (two cases).

Nos. 60366, 60367.

Court of Appeals of Georgia.

Argued Sept. 8, 1980.

Decided Jan. 5, 1981.

Phillip S. McKinney, Atlanta, Karl M. Kothe, Rome, C. B. Rogers, Atlanta, for appellant.

J. Corbett Peek, Jr., Alfred G. Adams, Jr., James G. Peek, Atlanta, for appellees.

SOGNIER, Judge.

Appellant, Williams-East, Inc., leased certain commercial property located in Gwinnett County from Weeks. Subsequently, Weeks leased a portion of the same property to Rockwell without the consent of Williams-East. Weeks claimed Williams-East was in default on its lease with Weeks.

Appellant filed an action in Fulton County Superior Court on November 6, 1979 seeking declaratory and injunctive relief, as well as damages, based on its lease agreement with Weeks. Appellee filed a dispossessory action in Gwinnett County on November 6, 1979 seeking possession of the premises from Williams-East. Weeks was served with the Fulton County suit on November 19, 1979. Williams-East was served with the dispossessory action on November 8, 1979 and answered the petition asserting the same claims as were asserted in its Fulton County suit. Weeks filed an answer and a motion to dismiss the Fulton County suit on December 13, 1979. The motion to dismiss was granted on February 12, 1980. Williams-East appeals and we affirm.

1. Appellant contends that the trial court erred in granting Weeks' motion to dismiss, which was based on the pendency of a former suit, because Weeks failed to raise such an affirmative defense in his answer. Pendency of a former suit for the same cause of action between the same parties in the same or any other court that has jurisdiction is a good cause of abatement. Code Ann. §§ 3-601, 3-607; Rothstein v. Consuegra, 153 Ga.App. 620, 266 S.E.2d 309 (1980). Such a defense must be pleaded affirmatively to create an issuable defense. Vericon Corp. v. Hardin, 130 Ga.App. 239, 202 S.E.2d 691 (1973). While Weeks did not include the pendency of the former suit in his answer as he might have (§ 81A-108(c)) he did raise the issue in his motion to dismiss. "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." Phillips v. State Farm &c. Co., 121 Ga.App. 342, 346, 173 S.E.2d 723 (1970).

Additionally, there is nothing in the record to indicate that Williams-East objected to appellee's answer or motion. The alleged lack of pleading was not raised in the trial court and the issue is not properly before us. Phillips v. State Farm, supra at 347, 173 S.E.2d 723. This court will not consider questions raised for the first time on appeal. Foster v. Continental Cas. Co., 141 Ga.App. 415, 416, 233 S.E.2d 492 (1977); White v. Front Page, 154 Ga.App. 518, 268 S.E.2d 732 (1980).

2. Appellant also argues that a motion to dismiss was not the proper procedure to dispose of the case since evidence beyond the face of the pleadings was required to rule on the motion. A motion to dismiss can be converted to a motion for summary judgment if matters outside the pleadings are considered by the trial court. Hill v. Davis, 241 Ga. 233, 234, 244 S.E.2d 852 (1978). Appellant contends, however, that if such was the case proper notice was lacking as required by Code Ann. § 81A-156. We find this contention without merit.

The proper procedure to raise matters of abatement is not a motion for summary judgment since such a motion contemplates an adjudication on the merits. Rather, such matters should be raised in a pleading or motion pursuant to Code Ann. § 81A-112(d) and heard under the provisions of Code Ann. § 81A-143(b), which contemplates consideration of evidence not appearing on the face of the record. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 208 S.E.2d 459 (1974).

3. Appellant contends that appellee failed to introduce into evidence certified copies of the Gwinnett County action. The record discloses that appellee attached copies of the dispossessory proceedings to his motion to dismiss. The proper procedure would have been for appellee to present certified copies of the record in the Gwinnett County action as evidence of the prior suit. Watts v. Kundtz, 128 Ga.App. 797, 798, 197 S.E.2d 859 (1973); Rowland v. Kellos, 236 Ga. 799, 801, 225 S.E.2d 302 (1976). However, appellant did not object to such copies; in fact, in his argument against appellee's motion to dismiss in the trial court, appellant referred to such pleadings. Since this issue was not raised in the trial court, it will not be considered by this court for the first time on appeal. Phillips v. State Farm, supra at 347, 173 S.E.2d 723.

4. Appellant's next enumerated error is that the trial court erred in granting appellee's motion to dismiss because appellee failed to present evidence that the Gwinnett County suit was filed prior to the Fulton County suit. Appellant contends that the priority of pending actions is determined by the date of filing of each complaint; appellee contends that the action is "pending" on the date the opposite party is served. The priority of pending actions is determined by the dates of filing, if service has been perfected. Wheeler v. Wheeler, 229 Ga. 84, 85(1), 189 S.E.2d 427 (1972); Jackson v. Schulman, 142 Ga.App. 625, 237 S.E.2d 4 (1977). " 'The Georgia courts have repeatedly held that service or waiver is essential, but that when made it relates back to the date of filing, which establishes the date the action is commenced.' Taylor v. Kohlmeyer & Co., 123 Ga.App. 493, 494(1)...