"[B]ecause sovereign immunity is jurisdictional, it requires the plaintiff to prove any waiver thereto and is properly raised [as a defense] under OCGA § 9-11-12 (b) (1)." Spann v. Davis, 312 Ga. 843, 850 (2) n.11, 866 S.E.2d 371 (2021) (emphasis in original). To meet this burden, the plaintiff must show "that the contract sought to be enforced is in writing and contains all of the terms necessary to constitute a valid contract."

See also Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320, 323 (1), 727 S.E.2d 151 (2012) ("Consequently, if the facts alleged in the complaint affirmatively prove a defense, a court may dismiss the complaint based upon the defense …."). (Citations and punctuation omitted.) Spann v. Davis, 312 Ga. 843, 845-846 (1), 866 S.E.2d 371 (2021). (a) Morgan & Morgan Atlanta contends that the trial court erred by denying its motion to dismiss the entirety of the complaint, maintaining that it is not a proper defendant because it had no attorney-client relationship with either Brian Brown or Veronica Brown.

" Counsel thus requested the court to "make that determination based on the video evidence." See generally Spann v. Davis , 312 Ga. 843, 847 (1), 866 S.E.2d 371 (2021) ("[A]s is generally the case for those asserting an affirmative defense, a party seeking protection from suit on the basis of immunity bears the burden of establishing that he or she is entitled to that protection."). And as noted above, the trial court ruled that Harrison was entitled to official immunity, revealing in its order that such ruling was based upon the court's viewing of the recording.

But the defense of judicial immunity is an affirmative defense that can be waived. See Spann v. Davis, 312 Ga. 843, 846-848 (1) (866 S.E.2d 371) (2021). While the defense of judicial immunity need not necessarily be asserted in a responsive pleading or motion, the defense is waived if it is not raised any time before judgment.

City of Hapeville v. Sylvan Airport Parking, 359 Ga.App. 448, 450 (2) (858 S.E.2d 538) (2021) (citation and punctuation omitted); see also Spann v. Davis, 312 Ga. 843, 850 (2) (866 S.E.2d 371) (2021) ("Georgia courts have no subject matter jurisdiction when sovereign immunity applies[.]") (footnote omitted).

Indeed, even this approach is not a certainty. See generally Spann v. Davis, 312 Ga. 843, 850 (2) (866 S.E.2d 371) (2021) (holding that defenses of judicial and quasi-judicial immunity are affirmative defenses, rather than "issue[s] that would divest the court of subject matter jurisdiction"). Notably, in none of those cases have our courts voiced a prescribed procedural vehicle in which to advance an official immunity defense.

"Subject matter jurisdiction refers to the authority of a court to hear a specific claim, and when a court lacks subject matter jurisdiction to decide a question, it has no power to enter a judgment on the merits." Spann v. Davis , 312 Ga. 843, 850 (2) n. 9, 866 S.E.2d 371 (2021) (citation and punctuation omitted). Our courts have recognized that a plaintiff's "failure to exhaust administrative remedies deprive[s] the trial court of subject matter jurisdiction over the complaint."

But One Bonehead did not assert a statute of limitation defense, and "a trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived." Spann v. Davis , 312 Ga. 843, 847 (1), 866 S.E.2d 371 (2021) (citation and punctuation omitted). "The bar of the statute of limitation is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases."

See Spann v. Davis, 2021 WL 5610019, at *7-*8 (Case No. S20G1536, decided November 23, 2021) (McMillian, J., concurring); Withers v. Schroeder, 304 Ga. 394, 399-400 (3) (819 S.E.2d 49) (2018); Hicks v. McGee, 289 Ga. 573, 575-577 (1) (713 S.E.2d 841) (2011).

Rickman, Chief Judge. In Spann v. Davis et al., 866 S.E.2d 371 (2021), the Supreme Court of Georgia reversed in part and vacated in part the judgment of this Court rendered in Spann v. Davis , 355 Ga. App. 673, 845 S.E.2d 415 (2020), in which we affirmed the trial court's sua sponte dismissal of Spann's complaint on the basis of quasi-judicial immunity. The judgment of the Supreme Court is hereby made the judgment of this Court, the trial court's judgment is reversed, and this case is remanded to the trial court for further proceedings in accordance with the Supreme Court's decision.